P.V. Sindhu joins Michael Jordan, Pele, Muhammad Ali in image rights battle

In 2009, Jordan, the greatest basketball player and the most marketable athlete in history, was forced to storm a different type of court. Dominick’s, a Chicago supermarket, had used his image in an advertisement for its steak. It was published in a special issue of Sports Illustrated, on the occasion of Jordan’s induction into the Naismith Memorial Basketball Hall of Fame. ‘You Are a Cut Above,’ was the line in the ad, which featured a picture of Dominick’s steak, Jordan’s name and his famous jersey number 23.

His Airness, long used to moochers, was not going to let this go quietly.

According to an article by Jordan’s lawyer Frederick J. Sperling on Law360.com, “The defendants (Dominick’s) argued that they did not take much of Jordan's identity, and, so, they should not have to pay much. In fact, there were fewer than 150,000 copies of the commemorative issue distributed and only slightly over 40,000 copies sold.”

Jordan’s lawyers in response quoted Jordan's former agent, David Falk, and his Hope Diamond theory. The theory was, “If you want the Hope Diamond, you have to buy the whole thing. You cannot just chip a little piece off. If you could, everyone would do that. The owner would lose control and there would be nothing left.”

(An India-interest digression. The Hope Diamond was sourced from Kollur Mines in Andhra Pradesh. It is believed to have been purchased in 1666 by a French gem merchant, Jean-Baptiste Tavernier. The stunning blue diamond is currently in the National Museum of Natural History, Washington DC, and has an estimated value of $200-350 million).

Jordan won the case. Dominick’s supermarket was asked to pay him $8.9 million.

“This shows I will protect my name to the fullest,” Jordan said. “It’s my name and I worked hard for it, and I’m not just going to let someone take it.”

In conclusion, Sperling wrote, “One of the key lessons from this case is that organizations should establish an intellectual property policy and adhere to that policy.”

The article also mentioned a case where Samsung thought they’d bypass the costs of hiring Pele by using a lookalike of the Brazilian football legend in an advertisement.

“The advertisement did not use Pele's image but featured an individual who looked very much like Pele. The advertisement also showed a Samsung TV with a soccer player executing a version of the so-called scissors or bicycle kick for which Pele is famous,” wrote Sperling.

The two parties settled out of court.

“The key lesson from this case is that companies cannot avoid misappropriation claims by imitating an individual's likeness,” Sperling wrote. “Courts have sustained misappropriation claims based on the use of lookalikes, sound-alikes and other identity evocations.”

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In another high-profile case, Fox TV’s tribute to Muhammad Ali in 2017 was equally a thinly-veiled promotion of its Super Bowl telecast.

The first half of the video was a paean to Ali and his achievements, and emphasised the themes of greatness and the greatest. The second half continued those themes, but now the visuals were not of Ali but American football legends. The video concluded with the Super Bowl logo and some Ali footage.

In court, Fox argued that the video was non-commercial, and as a broadcaster, they had a blanket licence to promote their products and services using any individual's identity, without their consent.

In response, the lawyers for Ali’s rights contested that the broadcaster did not have the right to use the identity of someone who was not related to the event being promoted. “It was undisputed that Ali had nothing to do with the Super Bowl or football,” Sperling wrote.

Once again, the case was settled out of court. But it was clear who had scored a point.