Not a Lexis+ subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
By Richard J. Leighton
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 were 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" wasnoncommercial 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, 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.
For more information on this and other Advertising Law matters, please contact *** J. Leighton at +1 202.434.4220 or at leighton@khlaw.com.
* Jordan v. Jewel Food Stores, Inc., et al., No. 10C340 (N.D. Ill., Feb. 15, 2012) [enhanced version available to lexis.com subscribers].
© 2002-2012 Keller and Heckman LLP
Legal Disclaimer
....
Lexis.com subscribers can explore/search Copyright Law resources on Lexis.com or access any of these Mathew Bender Copyright Law publications:
Non-subscribers can purchase Copyright Law treatises/resources and Mathew Bender publications from the LexisNexis Bookstore
For more information about LexisNexis products and solutions connect with us through our corporate site.