Chicago jurors awarded the basketball legend $8.9 million on August 21, 2015 in a lawsuit over the Illinois Right of Publicity Act.  The case involved the now defunct grocery store, Dominick’s Finer Foods (“Dominick’s”), which used Jordan’s name without his permission in a steak ad in 2009. Surprisingly, the case only reached trial this August, after prolonged litigation and reassignment to several judges.  After examining the facts and allegations of the case, Northern District of Illinois Judge Milton I. Shadur ruled that Dominick’s violated Jordan’s right of publicity, and a jury trial on damages followed.

The right of publicity prohibits use of an individual’s identity, including his name and likeness, for commercial purposes without the individual’s consent.  The right of publicity is usually protected by state statute; however, only about fifty percent of states have statutes protecting the right.  Right of publicity statutes generally protect an individual’s identity during his lifetime and often extend that protection for a number of years after his death.

In an oral ruling, Judge Shadur held that Dominick’s misappropriated Jordan’s identity by featuring his name and jersey number in an ad published in a Sports Illustrated Commemorative Issue.  Sports Illustrated provided the ad space for free in exchange for a premium display of the issue in the grocery stores.  Below Jordan’s jersey, the ad read “you are a cut above” and featured a $2-off coupon for steak.  Only two coupons were ever redeemed.

Since Judge Shadur found Dominick’s liable for misappropriation of Jordan’s likeness, the jury trial focused solely on damages.  The court instructed the jury that damages should be measured by the fair market value of the plaintiff’s identity. Fair market value can be calculated based on how much the celebrity would have received for a comparable use of his identity.

Evidence of Jordan’s fair market value included the $480 million he earned from Nike between 2000-2012.  Jordan argued that his identity was worth $10 million, which Judge Shadur openly characterized as greedy.  Because of these comments, Jordan argued that Judge Shadur was biased, and the judge recused himself from the case before trial.  Dominick’s attorneys contended that Jordan should receive no more than $126,900.

After six hours of deliberation, the jury awarded Jordan $8.9 million in damages.  The jury based their award on testimony from both Jordan and his sports economist, who testified that Jordan’s fair market value for the ad was $10 million.  Jordan has stated that the award will be given to charities in Chicago.

David Lilenfeld