Tuesday, March 18, 2014

Jim Croce -- "You Don't Mess Around With Jim" (1972)

You don't tug on Superman's cape  
You don't spit into the wind
You don't pull the mask 
Off the old Lone Ranger
And you don't mess around with Jim

Thanks to the late Jim Croce, you know all that.  I know it, too.  And I'm sure the people at Jewel Food Stores know it.

But what Jewel didn't know is that you don't mess around with Mike either – meaning basketball great Michael Jordan -- by running a full-page ad in Sports Illustrated congratulating him on his entry into the Basketball Hall of Fame without paying the guy.  Because if you do that, Mike will sue you for $5 million.

This whole hot mess started in September 2009, when Sports Illustrated took note of Jordan's induction into the Naismith Memorial Basketball Hall of Fame by publishing a special commemorative issue devoted to the extraordinary career of the nonpareil cager.  (Click here if you've ever wondered why basketball players are called "cagers.")

Jewel Food Stores was offered a free full-page ad in the magazine if it agreed to sell it in the 175-odd Jewel-Osco supermarkets it operated in the greater Chicago area.

 Jewel happily agreed to the offer, and its ad ran on the back inside cover of the special Sports Illustrated issue.

Here's the text of the ad:

A Shoe In!

After six NBA championships, scores of rewritten record books and numerous buzzer beaters, Michael Jordan’s elevation in the Basketball Hall of Fame was never in doubt!  Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was “just around the corner” for so many years.

The ad also included the Jewel-Osco logo and the supermarket chain's trademarked slogan -- "Good things are just around the corner" -- as well as a photo of a pair of basketball shoes bearing the number 23 (Jordan's uniform number).

Here's the ad in its entirety:

After the ad appeared, Jordan sued Jewel, alleging violation of the Illinois Right of Publicity Act among other laws.  (For those of you who are fortunate enough not to have gone to law school, the right of publicity is the right to limit the public use of one's name, likeness and/or identity, particularly for commercial purposes.  The right of publicity is most commonly asserted when an advertiser has used a celebrity's name or likeness in advertising, which likely implies to the audience that the celebrity endorses that product.)

Jewel argued that its ad was not advertising and, therefore, fully protected by the First Amendment.

A lower court agreed, and entered a judgment in favor of Jewel, which relied heavily on the fact that the ad was not "commercial speech" (i.e., advertising) at its core because it did not propose a commercial transaction.  In other words, the Jewel ad didn't sell a particular product.

The district court's decision was described as "a thoughtful opinion" by the federal appeals court that heard Jordan's appeal.  Praising the opinion as "thoughtful" is an example of what an old boss of mine at the Federal Trade Commission used to call "a little Vaseline to make the corncob slide in more easily" -- the corn cob in this case being the fact that the appeals court overruled the district court's finding that Jewel's speech was noncommercial.

In fact, the appeals court rejected the lower court’s holding more emphatically than ex-NBA'er Dikembe Mutombo rejected that box of cereal in the Geico commercial.

In doing so, the appeals court displayed a sophisticated understanding of modern advertising methods:

The notion that an advertisement counts as “commercial” only if it makes an appeal to purchase a particular product makes no sense today, and we doubt that it ever did.  An advertisement is no less “commercial” because it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service. Applying the “core” definition of commercial speech too rigidly ignores this reality.  Very often the commercial message is general and implicit rather than specific and explicit.  .  .  . [C]onsidered in context, and without the rose-colored glasses, Jewel’s ad has an unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers.

We've been talking about what it means to be cool.  What does the Michael Jordan-Jewel Food Stores litigation have to do with being cool?  Generally speaking, suing people is not cool. 

I personally think Michael Jordan was in the right here.  Jewel was likely hoping to win some goodwill by buying the Sports Illustrated ad.  But basking in the reflected glory of a famous celebrity has a price.  What would happen if Jewel got away with taking a ride on the Jordan gravy train without buying a ticket?  

Gatorade is one of the many
products Jordan endorses
We're talking serious money here.  As Jordan's lawyers said in the complaint they filed in a similar case:

Jordan has . . . had enormous success as an endorser of products and services.  By carefully controlling the nature and frequency of his product endorsement . . . Jordan has enhanced and maintained the value of his endorsements.  The majority of Jordan’s income, and his income potential, is now derived from his ability to license his name and persona to commercial sponsors. . . . As a business, the licensing of Jordan’s identity is just as important to him now as his professional basketball playing career once was.

It's all about the Benjamins, boys and girls.  And as my mother told me when I told her I was thinking of marrying my live-in girlfriend, "Why buy the cow when you're getting the milk for free?"  That principle applies to celebrity endorsements in the same way it applies to getting a little somethin'-somethin' without having to put a ring on it.

Michael Jordan may have been cool.  But he wasn't as cool as Walt "Clyde" Frazier.

Walt Frazier
Frazier was a great, great basketball player -- he led the New York Knicks to two NBA championships, started seven consecutive NBA all-star games, and is in the Basketball Hall of Fame.   He scored 20-plus points a game in six different seasons, but also finished in the top ten in assists in six different seasons.

But statistics aren't the most important thing when it comes to cool.  Walt Frazier was the first NBA star to make regular appearances in fashion magazines, the first NBA player to drive a Rolls-Royce . . . with personalized plates, of course.

And to quote Carly Simon, when Walt Frazier walked -- whether he was bringing the ball up court at Madison Square Garden or making a late-night appearance at a New York nightclub -- it was like he was "walking on to a yacht."  (Not sure if Walt owned a scarf that was apricot, but I wouldn't be surprised.)

Let's not forget the facial hair -- especially the sideburns:

One final note.  The author sincerely regrets that you can’t get “You Don’t Mess Around With Jim” out of your head.  (If all else fails, just whistle the theme from “The Andy Griffith Show.”  That usually does the trick.)

Here's "Don't Mess Around With Jim," which is almost certainly the worst song ever featured on 2 or 3 lines.

If you want to buy the song from Amazon, you'll have to do that without my help -- my conscience won't allow it.

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