In case you missed it, Michael Jordan won his case against now-defunct supermarket chain Dominick's over an ad it placed in a 2009 issue of Sports Illustrated, according to Insurance Journal. The report states the five-year court battle started because Dominick's ad congratulated Michael Jordan on his Basketball Hall of Fame induction (which read, "You're a cut above") while simultaneously offering customers a coupon for $2 off some steaks.
One could argue the juxtaposition alone was an unflattering one for Jordan, who never gave his consent for the supermarket to use his name. So the report states Jordan's high-powered lawyers went to work and argued successfully that:
- Jordan would have never entered a short-term endorsement like the one Dominick's crafted.
- The one-time use of his name was well worth $10 million (the man won six championships!).
- Jordan's net worth is largely from his endorsements (according to The Chicago Tribune, Jordan made $100 million in endorsements last year alone – more than he earned during his entire basketball career).
Faced with those arguments and the evidence that Jordan didn't give the supermarket permission to use his name for the ad, the court ruled in favor of Jordan and ordered Safeway (the company that owned Dominick's) to pay $8.9 million in damages, the report notes.
Now that you have the scoop, let's see what this case can teach small businesses about using someone's name or likeness in their advertising without permission (other than it is really, really expensive).
Reminder: Celebrity Names and Images Are Not Public Domain
When you see a celebrity's face on TV or their names regularly glossing magazines, it can be easy to forget that businesses and brands pay high dollar to have their companies associated with the stars. Just because the celebrity lives in the public eye doesn't mean their image, likeness, or name is free for the public to use as it sees fit.
Michael Jordan's case exemplifies this in plain detail: he worked hard to build his name, and part of that work means actively pursuing businesses that try to use it without his consent.
Actress Katherine Heigl was involved in a similar situation when the drug store chain Duane Reade tweeted a picture of her carrying shopping bags from the store. Because the photo was used in a commercial context without her consent…
- Heigl sued the store for $6 million over misappropriating her image.
- The two parties settled out of court.
You can read more about the case in Chapter 2 of our eBook Tweet or Twibel: The Small-Business Owner's Guide to Advertising Injury.
In short: make sure your business doesn't use a celebrity's image, name, or words without their express permission. Their endorsement is probably worth much more than you can spare, and using their likeness illegally to promote your products or services can lead to an equally expensive lawsuit.
Get Creative with Your Advertising
So you can't foot the bill for a celebrity endorsement. Big deal! There are endless budget-friendly ways to attract more attention to your business:
- Become a social media maven. The nice thing about social media? It's usually free. To make the most of social media marketing, know your audience. When in doubt, pay attention to what your fans and followers are sharing, and adapt your strategy.
- Add a good copywriter to your staff. A copywriter can pen blog posts, come up with product names and tag lines, and jot a witty tweet. Just make sure they understand what advertising injuries are and how to avoid them (professional copywriters should already have that on lock).
- Make your business the star. Instead of hiring a celebrity to shill your goods, why not focus on crafting your business's personality and showcasing the staff that makes it all possible? These little touches humanize your business, and people like doing business with people. Win-win.
Lastly, think of General Liability Insurance as another facet of your marketing strategy. You don't need it in order to advertise your business, but it's a good failsafe in case someone ever accuses you of misappropriation, copyright infringement, or libel. A General Liability policy with advertising injury coverage can help pay for legal expenses associated with these claims, which can be astronomic (an average of $50,000 – read more about that here: "Study: 4 in 10 Small Businesses Likely to Have an Insurance Claim in the Next Decade").
To learn more about these types of lawsuits, check out our advertising injury blog series.