Two recent rights of publicity cases illustrated the parameters of using a public figure’s name, likeness, identity or image for commercial purposes, without consent for commemorative purposes. But when does commemoration cross the line into unlawful use of one’s right of publicity?
In the more recent case, Jordan v. Jewel Food Stores, Inc., the grocery chain Jewel-Osco featured an ad in a Sports Illustrated’s commemorative issue congratulating basketball legend Michael Jordan on his 2009 induction into the Hall of Fame. Though the ad did not feature an image of Jordan, it depicted his #23 sneakers with the text, “Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years,” referencing its slogan, which was reprinted below its logo: “Good things are just around the corner.” Jordan sued Jewel-Osco for violation of his statutory right of publicity, and Jewel-Osco sought contribution from Time Inc., which solicited the ad.
In a previous ruling for the case, the Seventh Circuit conclusively held the Jewel-Osco ad had a commercial purpose under the First Amendment because it prominently featured Jewel-Osco’s logo and marketing slogan, “which are creatively and conspicuously linked to Jordan in the text of the ad’s congratulatory message.” However, the Seventh Circuit remanded for consideration of the substance of the claims and made clear that it wasn’t resolving the state law issues. In the current case, Jordan merely asserted that the Seventh Circuit had resolved the issue, thus, his motion for summary judgment failed. As for Jewel-Osco’s third-party contribution claim, Time argued that the grocery store chain had no right of contribution because the right of publicity is an intentional tort, and Illinois law prohibits intentional tortfeasors from seeking contribution. Though Jewel-Osco claimed that its violation of Jordan’s right was not malicious (and thus was unintentional), the court disagreed and awarded Time with summary judgment. In other words, the court clarified that advertisers have the potential to violate someone’s right of publicity with a use that is intentional but innocent.
In an earlier opinion, Rosa and Raymond Parks Inst. for Self Dev. v. Target Corp., the court held that retailer Target Corp. was protected under the First Amendment for selling plaques bearing the name and image of civil rights icon Rosa Parks. In 2009, Target began to sell collage-style plaques commemorating the Civil Rights movement, depicting various photos and quotes of Rosa Parks. The Parks Institute, a nonprofit that owns the name and likeness of Rosa Parks, alleged that Target was using her name and likeness for its own commercial advantage in violation of state laws against violation of the right of publicity, misappropriation and unjust enrichment. In response, Target moved for summary judgment, using the First Amendment as a defense.
Under the fair use doctrine, the First Amendment protects the unauthorized use of a person’s name and likeness if the use has a redeeming public interest, news, or historical value. In rendering its decision, the Alabama court stated, “as both parties agree, one cannot talk about the Civil Rights movement without including Rosa Parks,” and that “by including a picture of Rosa Parks and Martin Luther King, Jr. alongside stylized renderings of the words ‘Civil Rights’ and ‘Change,’” the plaque’s creator sought to educate and inspire, “while telling the important story of Rosa Parks’ courage during the Civil Rights movement.” Thus, the court awarded Target summary judgment and upheld the fair use doctrine of the First Amendment.
Social and historical context made a difference in the Rosa Parks case, but it played no role in the Jordan case. Both Jewel-Osco and Target attempted to gain commercially from commemorating past icons, and the context of that commercial association made all of the difference.