15-Second Advertising Law Alert: Michael Jordan's Judicial Air Ball

When is speech "commercial" and what is an "advertisement"? A recent federal decision addresses these fundamental questions in an eyebrow-raising fashion.^*

Background

Plaintiff is basketball legend Michael Jordan. Defendant is Chicago area Jewel Food Stores, the trade name of which is Jewel-Osco.

Time Inc., asked Jewel to design what they both called an "ad." It was for a special edition of Time's Sports Illustrated commemorating Jordan's induction into the Basketball Hall of Fame. Jewel would not pay for the "ad," but would sell the magazine at check-out displays.

Jewel agreed and created a page that featured a pair of basketball shoes with Jordan's Chicago Bull's number (23) on each. The short copy stated, among other things:

Michael Jordan's elevation [to the Hall of Fame] was never in doubt. Jewel-Osco salutes #23 … a fellow Chicagoan who was ‘just around the corner' for so many years.

Below that was the Jewel logo and its slogan "Good things are just around the corner." Jordan never gave permission for the "ad."

Jordan sued under the Lanham Act and the state right of publicity statute, among other laws. Jewel moved for summary judgment.

Decision

The court concluded as a matter of law that the Jewel "ad" was noncommercial speech. The court's primary basis was that the page did not propose any commercial transaction.

Jewel's logo and slogan did not propose a transaction for particular products or services; any element of commercialism was "intertwined with and overwhelmed by the message's noncommercial aspects…."

Thus, the court found that the page was not an "advertisement." The parties' description of it as an "ad" was just "convenient shorthand." No money was paid by Jewel, nor did the text praise Jewel products or services. Even though Jewel might have had an economic motivation for sponsoring the page, that does not make it a commercial advertisement.

Unusually, the parties were asked to brief whether Jordan's claims could survive these legal conclusions.