A jury awarded Michael Jordan $8.9 million this week after he testified he doesn’t do deals for less than $10 million and he would never have done a deal with the grocery store chain Dominick’s Finer Foods, LLC, as it wasn’t in line with his carefully crafted public image. The lawsuit was brought by Jordan after Dominick’s placed an ad in an issue of Sports Illustrated purporting to congratulate Jordan for being inducted into the NBA Hall of Fame, stating “Michael Jordan: you are a cut above the rest,” directly above a $2 coupon for steak. Click here to see a picture of the ad and for a further discussion of the case. The parties had already stipulated to Dominick’s liability for its use of Jordan’s likeness under the Illinois Right of Publicity Act, turning the focus to how much that use was going to cost the company.
As previously discussed on this blog in Part 3 of an overview of right of publicity claims, where the plaintiff is a celebrity, a key component of the plaintiff’s damages claim will be the fair market value for his or her services. To establish the fair market value of their services, celebrities may point to previous endorsement deals, fees paid for commercial appearances, and expert opinion to establish the “going rates” for the exploitation of their names and likenesses in connection with a commercial purpose. As the Southern District of New York noted, “there is a fairly active market for exploitation of the faces, names and reputations of celebrities, and such market – like any other – must have its recognized rules and experts.” Grant v. Esquire, Inc., 367 F. Supp. 876, 881 (S.D.N.Y. 1973); see also Midler v. Ford Motor Co., 849 F.2d 460, 463 (9th Cir. 1988) (the value of Ford’s unauthorized use of a Bette Midler sound-alike in a car commercial “was what the market would have paid for Midler to have sung the commercial in person”); Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1102-03 (9th Cir. 1992) (singer Tom Waits awarded the fair market value of his services after a sound-alike is used in a Doritos commercial); Solano v. Playgirl, Inc., 292 F.3d 1078, 1090 (9th Cir. Cal. 2002) (Ninth Circuit held “the measure of damages available for misappropriation claims includes the economic value of the use of an individual’s name and likeness.”)
Jordan’s attorneys argued the fair market value of Jordan’s identity was in excess of $10 million. Dominick’s attorneys attempted to limit Jordan’s testimony on the issue of damages, arguing that Jordan was not qualified to make an estimate as to the damage the ad caused him or to discuss dollar amounts in front of the jury. Ultimately, Jordan was allowed to testify as to the $10 million figure. Safe to say the jury was swayed by Jordan’s testimony.