Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: Michael Jordan denied summary judgment on publicity claim against grocery chain, (Mar 13, 2015)

By Peter Reap, J.D., LL.M.

On remand from the Seventh Circuit, the federal district court in Chicago has denied Michael Jordan’s motion for summary judgment on his Illinois Right of Publicity Act (IRPA) claim against Chicagoland grocery chain Jewel Food Stores, Inc. for taking out a magazine advertisement using his identity without his permission. In addition, magazine publisher Time, Inc.’s motion for summary judgment on Jewel’s third party claims for contribution and indemnity on Jordan’s IRPA claim was granted (Jordan v. Jewel Food Stores, Inc., March 12, 2015, Feinerman, G.).

Background

In 2009, Jordan was inducted into the Naismith Memorial Basketball Hall of Fame. To commemorate the occasion, Time Inc. published a special edition of Sports Illustrated Presents, celebrating Jordan’s career. About a month prior to publication, a sales representative for Time contacted Jewel and offered Jewel free advertising space in the magazine in return for a promise to stock and sell copies of the magazine in its stores. Jewel placed a full-page ad in the issue, featuring a pair of basketball shoes with Jordan’s number 23 displayed on them, with the headline “A Shoe In!” The copy said “Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years.” The page displayed the Jewel-Osco logo and its tag line “Good Things are just around the corner.”

Soon after the magazine went on sale, Jordan filed suit against Jewel in Illinois state court, alleging violations of IRPA, the Illinois Consumer Fraud and Deceptive Business Practices Act, the Illinois common law of unfair competition, and the Lanham Act. Jewel removed the case to federal court and filed third-party claims against Sports Illustrated’s publisher, Time Inc., for contribution and indemnification. Time responded with third-party counterclaims against Jewel for breach of contract and indemnification.

After completion of discovery, Jewel moved for summary judgment, raising the First Amendment as a defense and arguing that its ad constituted noncommercial speech entitled to full constitutional protection. The district court agreed with Jewel that the ad was noncommercial speech. The parties agreed that the noncommercial-speech determination provided a complete defense and conclusively defeated all of Jordan’s claims. Accordingly, the district court entered final judgment in favor of Jewel, and Jordan appealed.

The Seventh Circuit reversed, holding that Jewel’s ad was commercial speech within the meaning of the First Amendment, entitling it to lesser constitutional protection, and remanded for consideration of the merits of Jordan’s claims. The court granted Jordan’s motion for leave to file a second amended complaint, which states only an IRPA claim; although Jordan did not formally dismiss his other claims, he agreed on the record that he will not renew those claims against Jewel in this or any other case.

Before the court were Jordan’s motion for summary judgment on his IRPA claim and Time’s motion for summary judgment on Jewel’s third-party claims.

Jordan’s Summary Judgment Motion

To allege a common-law appropriation-of-likeness or right-of-publicity claim, a plaintiff must set forth three elements: (1) an appropriation of one’s name or likeness; (2) without one’s consent; and (3) for another’s commercial benefit. Jewel did not dispute the first two elements, so the only question was whether Jewel’s ad served a “commercial purpose,” the court noted.

“Commercial purpose” under the IRPA means “the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.” 765 ILCS 1075/5. Jordan argued that these passages from the Seventh Circuit’s opinion conclusively establish that Jewel’s ad served a “commercial purpose” within the meaning of the IRPA.

The Seventh Circuit’s opinion addressed whether Jewel’s ad qualified as commercial speech under the First Amendment, and it held that the “brand” advertising advanced by Jewel’s page was First Amendment commercial speech even though it did not refer to any specific Jewel product or service. The Seventh Circuit explicitly declined to address whether the Supreme Court’s commercial-speech doctrine should be used to define the commercial element of Jordan’s IRPA, Lanham Act, and other claims. In fact, the court expressed doubt that First Amendment commercial speech doctrine governed the scope of the commercial element of those claims, explicitly pointing out that it had cautioned against interpreting the Lanham Act in that manner.

Faced with the Seventh Circuit’s disclaimers and doubts, one would have expected Jordan’s summary judgment briefs—in the absence of case law on the issue—to engage with the IRPA’s text in light of Illinois rules of statutory construction, according to the court. It did not. When faced with the need to interpret a particular statute, Illinois courts often look to decisions interpreting a closely related Illinois statute—yet Jordan neither cited this canon nor brought to the court’s attention any closely related statutes or precedents interpreting those statutes. Illinois courts also look to the interpretation given analogous statutes enacted by other States—but again, Jordan neither cited this canon nor brought to the court’s attention any cases from other States interpreting right to publicity or other similar statutes.

Instead, Jordan’s initial brief devoted just a paragraph to the meaning of “commercial purpose” under the IRPA. Put simply, Jordan argued that because the Seventh Circuit’s opinion said what it said, Jewel’s ad has a “commercial purpose” under the IRPA. But that is precisely what the Seventh Circuit twice made clear it was not saying, the court reasoned.

A party moving for summary judgment must establish the legal and factual predicates for summary judgment, and Jordan’s failure to develop an argument on the central and unanswered legal question of the extent to which the scope of the state law is coextensive with the Supreme Court’s constitutional commercial-speech doctrine—or even to acknowledge that the Seventh Circuit left open that question—operated as a forfeiture, at least for purposes of summary judgment, the court ruled.

Jordan’s summary judgment motion accordingly was denied.

Time’s Summary Judgment Motion

Contribution. Time argued that Jewel has no right of contribution as to Jordan’s IRPA claim because the right of publicity is an intentional tort. Jewel rightly conceded that Illinois law prohibits intentional tortfeasors from seeking contribution from co-tortfeasors. Jewel argued, however, that because it is possible to violate the IRPA unintentionally, the question of whether Jewel’s actions were in fact intentional—and thus whether Jewel could seek contribution from Time if found liable under the IRPA—was for a jury to decide.

Jewel’s argument, while having some surface appeal, was incorrect, the court determined. Illinois’s right of publicity tort—as codified by the IRPA—is an intentional tort, and if Jewel was found to have violated the statute, it would be an intentional tortfeasor barred by settled Illinois law from imposing contribution liability on Time. This conclusion comported with the Illinois Supreme Court’s holding that the costs of accidental injury are to be apportioned in accordance with the relative fault of all concerned in the action. One could not accidentally create an ad using another’s likeness and then publish it without consent—even though one can do so innocently, for example, by incorrectly assuming that consent had been procured, the court observed. Time therefore was entitled to summary judgment on Jewel’s third-party contribution claim for Jewel’s potential liability under the IRPA.

Indemnity. Jewel’s third-party indemnity claim against Time sounded in implied indemnity. Under Illinois law, implied indemnity is available to a principal who, through no fault of its own, is held liable for its agent’s negligent tort against a third party. To prevail on a claim for implied indemnity, a plaintiff must establish: (1) that there was a pre-tort relationship between the indemnitor and the indemnitee, and (2) that the indemnitee was held derivatively liable for the acts of the indemnitor.

With respect to the first element, Jewel responded that its pre-tort relationship with Time gave rise to an indemnification duty because they had a “wholesaler-retailer relationship.” In Illinois, the classic pretort relationships which have given rise to a duty to indemnify include: lessor and lessee; employer and employee; owner and lessee; and master and servant. And because Illinois courts have generally refused to expand the set of qualifying pre-tort relationships, this court also refused to do so.

In any event, with respect to the second element, implied indemnity is available in Illinois only where the indemnitee is liable to the plaintiff solely on a derivative basis. The Supreme Court of Illinois reaffirmed that, in light of the Illinois Joint Tortfeasor Contribution Act, the only remaining reason to recognize the viability of implied indemnity is where a principal is vicariously liable for the conduct of an agent or for the nondelegable acts of an independent contractor. Stated differently, the party on whom the duty to indemnify is sought to be imposed must have been in some (though often an attenuated) sense at fault and the other party blameless though liable—that is to say, only strictly liable, by virtue of respondeat superior, implied warranty, strict products liability, or some other legal principle that imposes liability regardless of fault, the court noted.

Jewel did not argue that its potential liability to Jordan would be derivative, much less derivative of Time’s liability. Nor could Jewel claim to be blameless though liable to Jordan by operation of law, if indeed a jury were to find that it was liable to him, thereby triggering its implied indemnity claim against Time; rather, if Jewel was found liable to Jordan, it would be due to its own conduct and not just derivatively through Time’s conduct. Accordingly, Jewel could not seek indemnification from Time under Illinois law.

The case is No. 10 C 340.

Attorneys: Clay A. Tillack (Schiff Hardin LLP) for Michael Jordan. Anthony Richard Zeuli (Merchant & Gould PC) for Jewel Food Stores, Inc., and Supervalu Inc.

Companies: Jewel Food Stores, Inc.; Supervalu Inc.

Cases: Advertising IllinoisNews