Update: Michael Jordan’s Motion for Summary Judgment on Right of Publicity Claim Denied

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Jordan v. Jewel Food Stores, Inc., No. 10-c-340 (N.D. Ill. Mar. 12, 2015)

Following the Seventh Circuit decision that permitted Jordan to proceed and allege violations under Illinois publicity law against the supermarket chain Jewel-Osco, Jordan moved for summary judgment as to defendant’s liability under his Illinois Right of Publicity Act (IRPA) claim.  The U.S. District Court of Illinois denied Jordan’s motion for summary judgment for failing to establish that the commemorative add served the commercial purpose.

The IRPA prevents a person from using an individual’s identity for commercial purposes without prior authorization. In order to successfully bring an IRPA claim, the plaintiff must establish three elements: (1) an appropriation of one’s name or likeness; (2) without one’s consent; and (3) for another’s commercial benefit. The third element is the only one in issue: whether Jewel-Osco’s ad served a “commercial purpose”.

In his motion to dismiss, Jordan offered no precedents to support his argument that brand advertising is a “commercial purpose” under the IRPA and instead relied solely on the language in the appellate opinion. The District Court rejected Jordan’s argument, finding it particularly thin and specifically pointing to multiple sections in the Seventh Circuit’s opinion where the court declined to resolve the state law issue because the parties did not the present the merits of interpreting the scope of the state law in relation to the first amendment commercial-speech doctrine. Jordan’s failure to develop an argument in favor of defining the IRPA “commercial purpose” element with the Supreme Court’s commercial speech doctrine caused the motion for summary judgment to be forfeited. Jordan will now need to make this argument to a jury for a trial scheduled to be held in December 2015.