Ninth Circuit Rules NCAA Violates Antitrust Law-Strikes Down Proposed Remedy

Congratulating A Celebrity Could Cost You A Lawsuit re: Right of Publicity and False Endorsement

When a celebrity does a good deed or a sports figure achieves a major accomplishment, companies may feel like sending a public “shout out” to that individual – whether it be through a tweet, a Facebook post, or some other media.  However, companies need to be very careful that such a reference to the public figure does not suggest any type of endorsement of or association with its products or services, which could constitute a right of publicity violation.  The right of publicity is generally understood to be the right of a person to control the commercial exploitation of his or her identity, and prevent commercial appropriation of his or her identity by others without permission.  Generally, a right of publicity violation consists of unauthorized use of a protected aspect of identity (i.e. name, image, likeness) for commercial purposes, such as use on commercial products and in commercial advertising.

Last year we mentioned basketball legend Michael Jordan’s right of publicity lawsuit against Jewel Food Stores. In 2009, Jewel Food Stores ran an advertisement in Sports Illustrated magazine containing congratulatory text about Jordon’s induction in the Basketball Hall of Fame along with a photo of Jordan’s namesake basketball shoes.  However, the advertisement also featured Jewel’s trademarks: its red and white logo and the slogan “Good Things Are Just Around the Corner.”  The ad copy played on the slogan to refer to Jordan as a “fellow Chicagoan who was ‘just around the corner’ for so many years.”

In response, Jordan filed suit against Jewel for right of publicity violation, false endorsement under the Lanham Act, and unfair competition, seeking $5 million in damages.  Jewel argued that the notice was non-commercial speech and should be protected by the First Amendment, and the district court agreed.  However, the Court of Appeals held that although the advertisement had a celebratory theme, there was an unmistakable commercial function also.  Even though it did not purport to sell any specific product, it served to enhance the store’s brand in the minds of consumers.  Specifically, the court noted it was

image advertising, aimed at promoting goodwill for the Jewel-Osco brand by exploiting public affection for Jordan at an auspicious moment in his career.

There has been some activity by the court since our last post and the suit’s remand.  In response to Jewel filing third-party claims against Time Inc. (publisher of Sports Illustrated) for contribution and indemnification, the district court ruled that Time could not be held liable, as state law would prevent Jewel from imposing contribution liability on Time.  Additionally, the court has denied Jordan’s request for summary judgment on his claim under the Illinois Right of Publicity Act, stating that the appellate court’s conclusions about the function of the ad under the First Amendment did not answer the question as to whether Jordan’s identity was used for a commercial purpose under state law.  Finally, just last week the court ruled that Jordan has a statutory right to sue Jewel, in response to Jewel’s assertion that Jordan had transferred his publicity rights to his loan-out company, rendering him the improper plaintiff.

A jury trial for this case is set for December 8.

Companies who may be considering using a celebrity’s name or likeness in any contextwithout permission should think again, especially in light of lawsuits like this one.

© Copyright 2015 Squire Patton Boggs (US) LLP

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jschaller@natlawreview.com

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