Back in the day, kids would have posters in their rooms of Michael Jordan, the photo taken through the transparent backboard, a tongue-lolling Jordan poised to deliver a monster jam over whatever hapless opponent happened to be in the way.
MJ is long-retired, but he’s still “postering” opponents – just in a different kind of court.
On the occasion of Jordan’s induction into the NBA Hall of Fame, Jewel Foods (a Chicagoland grocery chain) ran a congratulatory ad in a special edition of Sports Illustrated. Jordan took offense, and sued for $5M alleging publicity rights violations. While Jewel prevailed at the District Court level, the 7th Circuit reversed, finding the ad to be commercial speech. The opinion has a nice discussion of how the commercial speech doctrine works in edge cases like this.
When I read the case, I thought perhaps the court had gotten it wrong. After all, not all advertising is commercial speech. It’s got to have an economic motive, promote a specific product and be in an advertising format. And this was just a nice ad congratulating a local legend, right?
But then I saw the ad itself. Check, check, and check. Although Jordan’s suit does seem awfully mean-spirited and petty, it’s not hard to see why the 7th Circuit found it be “image advertising” subject to the commercial speech doctrine.