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Commemorative Ad Isn't Protected Free Speech

By Stan Soocher

Entertainment trade publications often compile special issues and sections that include tribute ads commemorating celebrated individuals and events. The U.S. Court of Appeals for the Seventh Circuit weighed in on the practice in the context of free speech regarding an ad in a special issue of the consumer imprint Sports Illustrated.

The special issue celebrated the 2009 induction of Michael Jordan into the Naismith Memorial Basketball Hall of Fame. Sports Illustrated offered free ad space to Jewel Food Stores in return for agreeing to distribute the Jordan special issue in its stores. In Jewel's commemorative ad, the chain store's logo and its slogan (“Good things are just around the corner”) appeared above a pair of basketball shoes labeled with Jordan's Chicago Bulls' number “23.” But Jordan sued, claiming the ad violated, among other things, his rights under the Illinois Right of Publicity Act and the federal Lanham Act. The U.S. District Court for the Northern District of Illinois, however, ruled that Jewel's ad was protected non-commercial speech under the First Amendment.

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