Judge Blocks Jordan’s 3-Point Attempt in Right of Publicity Lawsuit

Jordan’s bid to win the right of publicity lawsuit without going to trial failed as a federal district court refused to rule that Jewel’s use of his likeness violated relevant state law as matter of law.

On March 12, District Judge Gary Feinerman denied Jordan’s motion for summary judgment, finding that there remained an unanswered legal question of “the extent to which the scope of the . . .  state laws . . . is coextensive with the Supreme Court’s constitutional commercial-speech doctrine.”

To establish a right of publicity claim, Jordan must show that his name or likeness was misappropriated for commercial purpose.  Jewel stipulated that it misappropriated Jordan’s likeness but denied it used for commercial purpose.   Previously, Jewel’s attempt to raise a First Amendment defense was undermined when the Seventh Circuit ruled Jewel was entitled to lesser constitutional protection because its use was commercial speech within the meaning of the First Amendment.

Consequently, Jordan relied on the appellate court’s ruling to argue that Jewel’s use was commercial to further its right of publicity claim.  However, Judge Feinerman found Jordan’s argument unpersuasive because the appellate court explicitly declined to address in its opinion whether “the Supreme Court’s commercial-speech doctrine should be used to define” the “commercial element” of Jordan’s claim.

Jordan filed this suit back in 2010, shortly after Jewel Food Stores, a grocery store chain, ran a commemorative ad congratulating Jordan on his 2009 induction into the Hall of Fame.  He is seeking at least $5 million in damages.

A jury trial has been set for December 8, 2015.

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