On March 19, 2015, Wilson Elser published “Michael Jordan Denied Summary Judgment on His Right of Publicity Claim against Illinois Grocer,” an Alert concerning a case in which Michael Jordan was denied summary judgment on his right of publicity claim against Jewel Food Stores, Inc., when Jewel published a congratulatory “advertisement” in a special Sports Illustrated Presents issue that coincided with Jordan’s induction into the Basketball Hall of Fame.  Since then, Michael Jordan’s motion for reconsideration was denied as was Jewel Osco’s motion that Jordan lacked standing to bring the claim.

Background

In denying Jordan’s motion for summary judgment, the District Court first noted that while the Seventh Circuit had concluded the ad was commercial speech for purposes of Jewel’s First Amendment defense because it promoted Jewel’s brand, the appellate court specifically offered no opinion on “whether the Supreme Court’s commercial-speech doctrine should be used to define the commercial element” of Jordan’s Lanham Act and state law claims. In light of the Seventh Circuit’s decision, the District Court found that Jordan failed to develop and squarely address the central issue in the case: whether the term “commercial purpose” in the Illinois Right of Publicity Act (IRPA) “encompasses brand advertising as well as the advertising of specific products, merchandise, goods, or services, and thus whether and, if so, to what extent the term is coextensive with ‘commercial speech’ under the First Amendment.”

Insofar as the Seventh Circuit refused to address whether the commercial speech doctrine should be used to define the “commercial” element of the IRPA claim and Jordan failed to address the argument other than to claim it was resolved by the Seventh Circuit, the District Court refused to research and construct the legal arguments for Jordan.

Update

On April 6, 2015, Jordan moved to reconsider the denial of his motion for partial summary judgment. Among other things, Jordan argued that the District Court had misconstrued his arguments, the Seventh Circuit’s conclusions were dispositive of the “commercial benefit” element of his IRPA claim, and there was no need to interpret the IRPA’s definition of “commercial purpose” because it was clear and unambiguous. Jordan also noted that the District Court had failed to rule on Jewel’s argument that Jordan lacked standing to pursue an IRPA claim because his company (Jump 23, Inc.) owned all rights, title and interest in Jordan’s name, image and the like. Jewel opposed the motion to reconsider, contending that (1) Jordan failed to show that the Court’s decision was based on a manifest error of law or fact, (2) Jordan impermissibly sought to rehash the same summary judgment arguments that the Court previously considered and rejected, and (3) the Court had correctly framed the issue of whether Jewel’s brand advertising, with no reference to any good or service, meets the IRPA’s definition of “commercial purpose.”

On April 17, 2015, the District Court denied Jordan’s motion for reconsideration for reasons stated from the bench, and set a schedule for completion of expert discovery and for submission of IRPA jury instructions and supporting briefs. Separately, the Court entered and continued Jewel’s oral motion to dismiss based on lack of standing, allowing the parties to file supplemental briefs.

Following supplemental briefing on standing, on June 5, 2015, the District Court denied Jewel’s motion to dismiss. The court preliminarily noted that while Jewel had the right to challenge at any time the court’s jurisdiction under Article III of the U.S. Constitution, here Jewel sought dismissal based on Jordan’s purported lack of statutory standing under the IRPA. See 765 ILCS 1075/20(a) (“The rights and remedies set forth in this Act may be exercised and enforced by: (1) an individual or his or her authorized representative; (2) a person to whom the recognized rights have been transferred by written transfer under Section 15 of this Act; or (3) after the death of an individual who has not transferred the recognized rights by written transfer under this Act, any person or persons who possesses an interest in those rights.”)

The court found “beyond reasonable dispute that Jordan had adequately alleged a concrete injury in fact that is traceable to Jewel’s conduct, and therefore that he has Article III standing.” As to statutory standing to pursue an IRPA claim, the court found that there were contested issues of material fact on whether Jordan had transferred to Jump 23, Inc. his right of publicity, which transfer Jordan denied by affidavit. The Court concluded with a suggestion that Jordan consider moving for leave to amend his complaint to add Jump 23, Inc. as a party-plaintiff, which amendment might avoid the “possible distraction that this issue could pose at trial.”

We now await the next steps in this ongoing dispute. However, it appears that the case is still on track to be tried before the end of the year, with a current trial date of December 8, 2015.

Wilson Elser’s Intellectual Property practice continues to monitor this case involving Illinois’s Right of Publicity Act and is available to answer questions regarding use of a person’s name, likeness or image in conjunction with advertising.