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Thinking of Congratulating a Celebrity? Don’t….(and Save Yourself a Lawsuit)

February 24, 1997: Michael Jordan of the Chicago Bulls. ***** NORTH & SOUTH AMERICA SALES ONLY ----- NORTH & SOUTH AMERICA SALES ONLY *****

What’s the saying,  no good deed goes unpunished? Tell that to basketball superstar Michael Jordan, who sued Chicago-based grocery chain Jewel Food Stores after Jewel took out an ad in Sports Illustrated congratulating the fellow Chicagoan for being inducted into the Basketball Hall of Fame.

Jordan alleged that Jewel’s use of the ad (pictured), violated his rights to publicity, and resulted in false endorsement and unfair competition. Jewel argued that the ad was protectedjewel by free speech and had a celebratory theme, but the Court disagreed.  In the past couple of weeks, the Court decided that the lawsuit had enough merits to go ahead, and a jury trial has been set to start on December 8, 2015.

The Jordan lawsuit comes on the heels of Katherine Heigl’s legal claims against NY drugstore chain Duane Reade, for tweeting a photograph of her leaving its store with a Duane Reade bag, just after finishing her shopping.  Ms. Heigl filed a lawsuit alleging false advertising, violation of her rights to privacy, publicity, and unfair competition.

When a Business’s Products & Services Get Celebrity Attention

It is hard – really, really hard! – for businesses who get celebrity attention to resist the urge to tweet, Facebook, Instagram, blog, or otherwise draw attention to the fact that important people are their customers. But the reality is that using the celebrity’s name alone can result in a violation of law, as it could imply an endorsement of the business’s products or services by the celebrity. In a day and age when celebrities routinely earn $10K – $25K and up for a single endorsement, tweet, or shout-out, making this link between the business and a celebrity without the celebrity’s permission can backfire and result in a lawsuit usually seeking millions of dollars of damages. Ouch!

 How Far Can Businesses Go?

Obviously there is a fine line between “misappropriating” celebrity fame and simply reporting facts or news. For example, there is no known lawsuit arising out of a company simply “re-tweeting” or re-posting of content featuring a celebrity using their brand, products or services, as-is, without any commentary, advertising, call-outs, shout-outs, or other content.  This of course makes sense – how could a company have less rights than ordinary fans of the celebrity doing the same and amplifying existing content by re-sharing it to their own network and contacts?  The dangers, on the other hand, are well shown in the Duane Reed and Jewel lawsuits. If the content is taken, commercial/advertising language is added, and the celebrity’s name, likeness, or image is used for the company’s marketing purposes, then it can spell trouble for the company or small business.

 Getting Legal Help

Advertising is an underestimated minefield for small businesses. In a competitive marketplace, where consumer sentiment can change arbitrarily, and with alarming speed, small businesses often push the boundaries of advertising to ensure stable revenues and expand growth opportunities.  In industries in which advertising is very aggressive, no business wants to be made an example of, especially when competitors may be doing the same or worse. With a little planning and risk management, costly mistakes can be avoided… and that is definitely something worth tweeting!

AXIS Legal Counsel’s Business Practice advises on a variety of small business issues including business formations, contracts, deals, and transactions, business administration, corporate governance, operations, risk management / insurance, labor/employment matters, intellectual property, healthcare, crisis management, directors/officers, private/data security, technology, statutory/legal compliance, and business litigation. We are also experienced in providing assistance to business clients concerning business contracts, corporate formation matters, contracts and transactions, business litigation, business legal advice for Corporations, LLPs, LLCs, Partnerships, Small Business, Startups, and others involving corporate law.

If you are seeking a business lawyer, or for information on retaining AXIS Legal Counsel to represent your business in connection with any legal matter, contact [email protected] or call (213) 403-0130 for a confidential consultation.

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