In earlier blogs, I raised the alarm about improperly using a famous personality in the advertising of a business. If you need a clearer example of how even a large urban supermarket chain can stir up a hornet’s nest when they try to coast on the fame of a celebrity, consider the debacle encountered by Jewel Food Stores (“Jewel”) when it placed a full-page ad in Sports Illustrated congratulating Michael Jordan for his induction into the Naismith Memorial Basketball Hall of Fame. The “Michael” was not amused and sued them for $5 million for misappropriation of his identity under the Illinois Right of Publicity Act, the Illinois Consumer Fraud and Deceptive Business Practices Act and the Lanham Act (the principal federal trademark law).
The Seventh Circuit Court of Appeals concluded that the ad was commercial speech, not noncommercial speech which would be fully protected by the First Amendment as alleged by Jewel and, therefore, the trial can proceed on the merits, doubtless arriving at a decision in favor of actual and possibly punitive damages for Mr. Jordan, if a settlement is not reached sooner.
To understand why it is not a good idea to try to hitch your business to a “star” by including the name, image or likeness of a celebrity in any of your products (i.e., website, domain name, T shirts) or marketing materials, it is important to recognize that famous people, even deceased ones, can own rights in the commercial exploitation of their own celebrity status. Moreover, this right is not limited to the United States, but is recognized in other countries, an important consideration if you are doing business over the Internet. (See list of states and countries protecting the Right of Publicity.)
Basically, celebrities have property rights in their fame and, therefore, they decide how to exploit it commercially. Jewel argued that it was not trying to benefit commercially from the advertisement, but rather were exercising its First Amendment Right to congratulate Michael Jordan. The Seventh Circuit was not persuaded given that Jewel’s logo and marketing slogan were conspicuously linked to Mr. Jordan in the text of it’s ad’s congratulatory message. (See the Seventh Circuit’s opinion for full factual details and analysis.)
While it is true that commercial speech is entitled to protection under the First Amendment, nonetheless, it can be subjected to governmental restriction unlike the more favored full protection accorded to noncommercial expression. That is why in this instance, because the Seventh Circuit has concluded that Jewel’s ad was commercial speech, the company finds itself in the unhappy position of getting more than it bargained for.