6 Comments

Summary:

A drugstore’s decision to tweet a photo of a famous actress leaving its store raises the question of where to draw the line between news and endorsement rights.

KatherineHeigl
photo: JustJared

Katherine Heigl, a former star on Grey’s Anatomy, is not happy that New York drugstore chain Duane Reade tweeted a picture of her leaving its store. Now, she is suing the company for $6 million in damages, which Heigl says she will donate to a charity named for her late brother.

The conflict, which raises interesting questions about endorsements in the age of social media, began after gossip site JustJared posted pictures of Heigl leaving a store with her mother, carrying shopping bags. Soon after, Duane Reade tweeted the photo along with a gleeful caption. Here’s a screenshot of the tweet taken from Heigl’s lawsuit:

Katherine Heigl Duane Reade Tweet

Normally, celebrities can’t do much about people taking their picture in public place — it’s just part and parcel of the whole rich and famous thing. And, indeed, Heigl’s lawsuit, embedded below, suggests that JustJared had a right to post the photos since they were “news” (it’s not clear why anyone going to the drugstore is ever “news” – but that’s another story..)

According to Heigl, Duane Reade crossed the line by adding the captions. In her view, this was an unauthorized endorsement in violation of federal trademark rules and the personality rights laws of New York state.

She appears to have a case in that celebrities have a right to control the way their images are used for endorsement. You can’t, for instance, take a photo of Heigl walking by your donut shop and then use the snap to plaster billboards around the city that suggest she likes your donuts.

The Duane Reade case is a little more nuanced, however, in that it involves Twitter which, by its nature, is often associated with fleeting news events. If JustJared had tweeted the original photo and Duane Reade has retweeted it with its own caption, the company would be in a stronger position to say it a fair use right to share the photo. Instead, Duane Reade’s behavior looks more like a calculated decision to use an authorized endorsement rather than any form of news reporting – a claim Heigl’s lawyers make repeatedly in the complaint. (It’s also not clear if the drugstore bought the rights for the photo from JustJared — if not, it could be facing a copyright case too).

So what was Duane Reade thinking? The tweet appears reckless, especially given Heigl’s prickly reputation, and its reported refusal to delete the tweet.

Duane Reade has yet to comment so it’s unclear if the tweet was the work of an over-zealous social media staffer or, instead, a calculated risk to drum up maximum publicity. My guess is the latter, especially after the drugstore chose to retweet this message from minor CNN celebrity Piers Morgan:

This “no apologies” attitude is also unlikely to win support from a judge, meaning that the likely outcome of this is a quiet settlement a few months from now. The charity named in the lawsuit is the Jason Debus Heigl Foundation, an animal rights foundation named for Heigl’s brother who died in a 1986 car crash.

What do you think? Should Duane Reade have to pay for using the Heigl pic in this way?

Heigl Complaint vs Duane Reade

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  1. Ormy Underhill Thursday, April 10, 2014

    Of minor interest, Piers Morgan has over 4 million followers on Twitter. There is some play in that.

  2. Is it really necessary to state what she has starred in on the complaint?

  3. Katherine Heigl’s actions are absolutely appropriate. Duane Reade turned a candid photo of her into an ad without her permission or compensation. If public interest in the actress did not have promotional value, Duane Reade would not have jumped on the opportunity to use her celebrity to plump their brand. Whether or not the infringement is worth $6 million is the question. What’s missing in this story is the Twitter reach of @DuaneReade. How many people are likely to have seen the tweet? This will factor in determining the value of the abuse of Heigl’s personality rights. Of course, now that Heigl’s suit has turned the situation into a news story — with Piers Morgan playing it up to his substantial following and other media outlets to follow, Duane Reade is getting much more brand attention than they expected. This will probably not help them in limiting the damage settlement.

    1. Robotech_Master MBK Saturday, April 12, 2014

      I do think the “can’t resist” bit crosses the line, but other than that, the fact is, she DID shop at the store; she has the shopping bags in her hands. So if they’d just said she shopped there instead of saying she “can’t resist,” they’d probably have been fine.

  4. i hate lawyers

  5. Jim Crawford Sunday, April 13, 2014

    In a roundabout way, I wonder if this relates to the debate on ownership of private data. Who owns the photo — the photographer? Ms. Heigl? Who owns the right to publish it in a public medium?

    Duane Reade, like most retail stores, doubtless uses surveillance cameras to monitor against shoplifting. Are they entitled to use footage or still shots of celebs from security videos for self-promotion?

    Seems to me that in the past year’s debate over national security versus right to privacy — the whole Snowden vs. NSA thing — private companies whose business models leverage personal data have taken a lot less heat than they deserve. For my part, I take less offense at programs, however they went astray, whose intent was to save lives and protect the public good, than I do from corporate snake oil salesmen ripping off my data. When I see a company profiting from someone’s data/image/whatever, it make my blood boil.

    Good for you, Ms. Heigl. Seek treble damages.

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