Many businesses learn the hard way that even implied use of a famous person’s name or likeness without that person’s permission can be a costly mistake. Jewel Food Stores and Dominick’s Finer Foods, two grocery chains operating stores in the Chicago area, recently were named as defendants in lawsuits filed by basketball great Michael Jordan for publishing ads indirectly referencing Jordan’s 2009 induction into the Basketball Hall of Fame. The ads did not include Jordan’s picture or his name, but he nevertheless alleged in his complaint that the ads suggested an endorsement of the chains’ respective brands. Similarly, Chuck Yeager, the renowned former test pilot who was the first person to fly faster than the speed of sound, recently sued Virgin America for publishing an ad stating: “not unlike Buzz Aldrin or Chuck Yeager, you have the opportunity to be a part of a monumental moment in air travel.” In each case, the claimants have requested injunctive relief and damages.

Rights of publicity and the remedies available for their infringement vary from state to state, with some states offering statutory and/or common law remedies that can be much more far-reaching (and expensive for infringers) than those available in other states. Broadly stated, though, among states that offer remedies, the right usually can be distilled as the right to control any commercial use of a person’s name, image, likeness, or other identifying characteristic. The right is subject to limitations both under state law and under the First Amendment, but the consequences for infringers can be significant.

Businesses must work closely with counsel to carefully consider and plan any use of a third party’s identity in advertisements or other publicity.