Jordan v. Jewel Food Stores, Inc.

83 F. Supp. 3d 761, 113 U.S.P.Q. 2d (BNA) 2093, 43 Media L. Rep. (BNA) 1419, 2015 U.S. Dist. LEXIS 30334, 2015 WL 1204282
CourtDistrict Court, N.D. Illinois
DecidedMarch 12, 2015
Docket10 C 340
StatusPublished
Cited by5 cases

This text of 83 F. Supp. 3d 761 (Jordan v. Jewel Food Stores, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. Jewel Food Stores, Inc., 83 F. Supp. 3d 761, 113 U.S.P.Q. 2d (BNA) 2093, 43 Media L. Rep. (BNA) 1419, 2015 U.S. Dist. LEXIS 30334, 2015 WL 1204282 (N.D. Ill. 2015).

Opinion

Memorandum Opinion and Order

Gary Feinerman, United States District Judge

After Jewel Food Stores, Inc., a Chica-goland grocery store chain, took out a page in a commemorative issue of Sports Illustrated congratulating Michael Jordan on his 2009 induction into the Hall of Fame, Jordan sued Jewel in state court for using his identity without permission. Doc. 1-2. Jewel removed the suit' to federal court, Doc. 1, and filed third-party claims against Sports Illustrated’s publisher, Time Inc., and the page’s graphic designer, Vertís, Inc., for contribution and indemnification, Doc. 17. Time responded with third-party counterclaims against Jewel for breach of contract and indemnification. Doc. 40. Jordan then filed an amended complaint that added Jewel’s parent, Supervalu Inc., as a defendant; the amended complaint stated claims under the Illinois Right of Publicity Act (“IRPA”), 765 ILCS 1075/1 et seq., § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), the Illinois Consumer Fraud and Deceptive Trade Practices Act (“ICFA”), 815 ILCS 505/1 et seq., and common law unfair competition. Doc. 55. (Supervalu’s presence in this suit can and will be ignored for ease of exposition.) The court granted summary judgment to Jewel on First Amendment grounds. 851 F.Supp.2d 1102 (N.D.Ill.2012). 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. 743 F.3d 509 (7th Cir.2014). Vertis went into bankruptcy, so Jewel’s third-party claims against it are stayed. Docs. 276, 285. With the parties’ agreement, a jury trial has been set for December 8, 2015. Doc.316.

Now before the court are Jordan’s motion for summary judgment as to liability on his IRPA claim, Doc. 261, and Time’s motion for summary judgment on Jewel’s third-party claims, Doc. 288. After the motions were fully briefed, and with the agreement of all parties, 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. Doc. 339. Jordan’s summary judgment motion is denied, and Time’s motion is granted as to Jewel’s claim for indemnity and contribution on Jordan’s IRPA claim and denied as moot as to Jewel’s [765]*765claim for indemnity and contribution on Jordan’s other, dropped claims.

Background

The following facts are set forth as favorably the non-movants as the record and Local Rule 56.1 permit. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.2012). On summary judgment, the court must assume the truth of those facts, but does not vouch for them. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir.2012).

In 2009, when Jordan was inducted into the Naismith Memorial Basketball Hall of Fame, Time published a Sports Illustrated Presents commemorative issue devoted to celebrating his career. Doc. 301 at p. 2, ¶4. Time asked several businesses, including Jewel, to design a one-page advertisement for the issue “with some play on words or design that is specific to Michael Jordan.” Id. at p. 1, ¶ 2; id. at pp. 4-5, 10-12. Attached to Time’s email solicitation to Jewel were examples of ads designed for a similar commemorative issue celebrating the Philadelphia Phillies’ 2008 World Series win; those ads incorporated the Phillies’ logo and name. Doc. 308 at p. 21, ¶¶ 21-22. A Time vice president agreed that “acceptance of [the offer] would require the content [of the ad] to at least have something to do with Michael Jordan,” and that “a tribute to LeBron James,” for example, probably would not have been acceptable. Id. at p. 21, ¶ 24.

Jewel paid no money for the opportunity, but did agree to stock and sell the commemorative issue at special displays by the checkout counters of its stores. Id. at p. 18, ¶ 9; id. at p. 19, ¶ 14. Jewel’s internal copywriter wrote the text, and Vertís, its marketing vendor, designed the graphics. Doc. 102 at ¶¶ 31, 32, 34. Here is the ad:

[766]*766[[Image here]]

Doc. 301-8 at 4. On the tongue of each shoe is “23,” the number Jordan wore for most of his tenure with the Chicago Bulls. Below the header “A Shoe In!” is the following text:

After six NBA championships, scores of rewritten record books and numerous buzzer beaters, Michael Jordan’s elevation in the Basketball Hall of Fame was never in doubt! 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 phrase in quotes is a play on Jewel’s slogan, which is printed below its logo: “Good things are just around the corner.” Jewel does not sell basketball shoes, and the ad mentions no specific Jewel product or service.

[767]*767Discussion

I. Jordan’s Summary Judgment Motion

Jordan has moved for summary-judgment on liability as to his IRPA claim. The IRPA provides in relevant part: “A person may not use an individual’s identity for commercial purposes ... without having obtained previous written consent[.]” 765 ILCS 1075/30(a). “To allege a statutory claim of appropriation of likeness under the [IRPA], one must set forth essentially the same three elements that were required for a common-law claim of appropriation of likeness.” Blair v. Nev. Landing P’ship, 369 Ill.App.3d 318, 307 Ill.Dec. 511, 859 N.E.2d 1188, 1192 (2006). “To allege a common-law appropriation-of-likeness or right-of-publicity claim, a plaintiff had to 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.” Trannel v. Prairie Ridge Media, Inc., 370 Ill.Dec. 157, 987 N.E.2d 923, 929 (Ill.App.2013). Jewel does not dispute the first two elements, Doc. 301 at p. 2, ¶ 5; id. at p. 3, ¶ 10, so the only question is whether Jewel’s ad served a “commercial purpose,” 765 ILCS 1075/30(a).

“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 fundrais-ing.” 765 ILCS 1075/5; see Trannel, 370 Ill.Dec. 157, 987 N.E.2d at 929. Jordan argues 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:

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83 F. Supp. 3d 761, 113 U.S.P.Q. 2d (BNA) 2093, 43 Media L. Rep. (BNA) 1419, 2015 U.S. Dist. LEXIS 30334, 2015 WL 1204282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-jewel-food-stores-inc-ilnd-2015.