I think everyone can agree Michael Jordan, formerly of the NBA Chicago Bulls, was one of the greatest basketball players of all time. And, I think we can also agree that for marketing purposes his face is not only very recognizable but also very valuable, especially when the basketball great is depicted in his trademark Bulls uniform with number 23 emblazoned across his chest. But, the question arises, exactly how much is his image worth when it’s being used to endorse a product or company? Well, according to a Chicago jury (obviously Bulls fans, as well), it’s worth $8.9 million.
During a trial over the value of Jordan’s name and image that concluded last week, sports economist Andrew Zimbalist, a Smith College professor who has consulted for players unions, teams, leagues and even states about sports economics issues, was the first witness to testify in Jordan’s federal court case in Chicago against the defunct Dominick’s grocery chain. Jordan was suing because Dominick’s used Jordan’s identity in a 2009 newspaper print ad ostensibly “congratulating” him for his accomplishments but without his permission. Dominick’s (which is now owned by Safeway’s) had already conceded that it used Jordan’s name, number and silhouette without permission so the only issue remaining for a federal jury to decide was just how much would Safeway have to pay Jordan for the unauthorized use of his image?
Based on Jordan’s steadily growing endorsement income (he made more than $100 million in endorsement deals in 2014, more than he made during his entire NBA career), Zimbalist testified that Michael Jordan’s identity carries a “fair market value” of about $10 million for a deal. Jordan retired from basketball more than a decade ago and his endorsement income now surpasses that of many top players. Zimbalist also shared that Jordan is extremely image-conscious and he occasionally turns down deals that don’t fit the image he wants to cultivate, like offers from Jim Beam or from a headphones company that he didn’t consider age-appropriate. By limiting his availability for endorsements, Jordan has been able to maximize his value and since 2000, Jordan’s typical endorsement deal has exceeded $10 million.
Michael Jordan’s federal court claims were based on the argument that Dominick’s infringed his “right of publicity.” The right of publicity, often called personality rights, is a form of trademark protection and constitutes the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity. The right of publicity is protected by statutes in more than twenty states, including Illinois (where Jordan’s case was filed), but, at the moment, there is no federal statute protecting the right. Most court cases interpreting the right of publicity have held that the right of publicity extends to every individual, not just those who are famous. However, as a practical matter, most right of publicity disputes usually involve celebrities, because they are the ones with names and likenesses images that help advertise and sell products and services.
The Dominick’s ad at issue ran in a special commemorative edition of Sports Illustrated magazine. Ironically, a second supermarket chain, Jewel-Osco, ran a similar ad in the same edition. Jordan has also sued Jewel-Osco and that case is set to go to trial in December. Sports Illustrated offered both supermarkets were offered free ads by the magazine in return for a promise to stock the issue commemorating Jordan’s election to the Basketball Hall of Fame.
Hugging his lawyers after the decision was read Friday night in a federal court in Chicago, Jordan told reporters, “I’m so used to playing on a different court. This shows I will protect my name to the fullest. … It’s my name and I worked hard for it … and I’m not just going to let someone take it.” Jordan went on to say that the case “was never about money” and that he plans to give the damages award to local charities in the Chicago area.
Reportedly, the jury deliberated for more than six hours and, at one point sending a note to the judge that saying, “We need a calculator.”
Why It Matters. In an age where virtually everyone “borrows” images, editorial content, music, and even video clips to repackage and broadcast on their Web sites and social media accounts, there remains a very real risk that the owners of the copyrights in those images, etc. will take protective action against infringers. And, when the image depicts someone with a valuable right of publicity such as Michael Jordan, the risk of losing an infringement action and suffering a substantial adverse judgment should be enough to prevent misuse. If you don’t own the rights to copyrighted material or the right to publicize a well-known sports figure or celebrity, then don’t use them. And, as I always used to tell my kids (who rarely heeded their father’s sage advice), it’s much easier and less expensive to learn from someone else’s mistakes than to make them yourself.