To avoid a second trial in litigation initiated by Michael Jordan challenging the use of his likeness in a commemorative issue of Sports Illustrated, the basketball legend announced a deal with the defendants.
In 2009, the sports magazine published a special issue in recognition of Jordan's induction into the Basketball Hall of Fame. Two different grocery chains—Dominick's and Jewel—took out ads in the publication that resulted in lawsuits from His Royal Airness.
The Jewel ad appeared on the inside back cover featuring a picture of the grocer's logo and text reading, "Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was 'just around the corner' for so many years," a play on Jewel's slogan "good things are just around the corner."
In the Dominick's advertisement, the grocery chain included a coupon for $2 off steak underneath an image of a pair of basketball shoes in Chicago Bulls colors with the statement, "Michael Jordan … you're a cut above" in addition to its logo.
Jordan claimed both the ads violated his rights under the Illinois Right of Publicity Act and sought $10 million against each defendant. After several years of legal wrangling, the suit against Dominick's went to trial this summer. Because a federal court judge had already determined the advertisement violated the state statute, the jury was tasked with simply deciding the amount of damages.
After Jordan's team presented evidence that despite his 2003 retirement, he still earns about $100 million per year in endorsement income, jurors deliberated roughly six hours before awarding him $8.9 million.
A trial in the case against Jewel was scheduled for later this month. That case has already created case law after the district court dismissed the suit on the grounds that the ad was noncommercial speech and entitled to full constitutional protection. The Seventh Circuit Court of Appeals reversed, finding the ad to be commercial speech and therefore subject to the Illinois statute as well as the Lanham Act.
Now, both suits have settled.
While the terms of the agreement are confidential, the parties said they were satisfied with the deal. "The terms of the agreement are confidential, but we are pleased to have reached a resolution of these matters," a Safeway spokesperson said, while a representative for Jordan agreed that he was pleased.
Why it matters: The high profile and long running litigation has come to an end and certainly provides a cautionary tale for advertisers about the dangers of using a celebrity's identity in advertising without permission. Jordan did not hesitate to enforce his publicity rights and jurors awarded him almost $9 million over a single page advertisement in a commemorative magazine with limited distribution. And case law was made in the process, when the Seventh Circuit recognized that modern commercial advertising is "enormously varied in form and style," and acknowledged the value of using "appealing images and subtle messages" to build goodwill for a brand.