David Levitt on What Michael Jordan's Lawsuits Can Teach us about the "Forgotten Defense" of Commercial Speech in Right to Publicity Cases

Chicago-based Hinshaw & Culbertson LLP partner David Levitt recently published an article titled "Right of Publicity and Commercial Speech" in DRI's For the Defense magazine. In the article, Levitt looks at the "astounding paucity" of case law involving use of a commercial speech defense by a right of publicity defendant. Calling it the "forgotten defense," Levitt opines that there is "no rational explanation" for why defendants have not more often raised the "very viable and well-settled protections" available even to speech deemed "commercial."

Levitt begins his article with a review of two right to publicity cases that Hall of Fame basketball player Michael Jordan filed against two Chicago-area grocers for ads they had placed in Sports Illustrated. While one of the defendants unsuccessfully argued that their ad was non-commercial free speech, neither sought protection for the ad as protected commercial speech under the First Amendment. Levitt continues with a review of the "weak underpinnings" of the right to publicity and then discusses how the U.S. Supreme Court's four-part test for commercial speech protection in Central Hudson can serve as a viable defense in right to publicity cases.

Read the full article "Right of Publicity and Commercial Speech" (PDF)

"Right of Publicity and Commercial Speech" was published in DRI's For the Defense magazine, August 2017.