Celebrities suing brands for a tweet - Katherine Heigl Vs. pharmacy chain Duane Reade

Katherine Heigl suing pharmacy chain Duane Reade is very, very timely... and frankly overdue. The lawsuit is simple - Just Jared, a paparazzi website posted a photo of Heigl walking out of a Duane Reade pharmacy store. Duane Reade used that photo on their Twitter profile. Like this.

The reporting around this news, in US, is oddly about how the actress is a tough person to work with and more about her as a person, than the merits or nuances of the case - very tabloidy, than meaningful.

But this is a very important case, in my view.

For instance, if a particular phone brand is being used in a film, because - there is a scene involving a cellphone in the script and they gotto use some phone - can the phone brand use a snippet or photo from that film (where the phone is displayed) in their Facebook/Twitter page along with the line, 'Actor X using our phone in Y movie'?

Or, should the phone brand reach the film's publicity team, ink a deal and then use it?

Similarly, if a celebrity is sporting a particular brand of sunglasses (which the film's or his/her personal stylist picked for him/her), can the sunglasses brand pick the photo of that celebrity wearing it and make it social media content?

Or, should they engage with the celebrity's image managers and sign a deal, and then do it?

In both these cases, and in Heigl's case, a for-profit brand is using a celebrity's name (plus photograph) to enhance its brand value. It is equivalent to saying, 'Hey look fans/followers... this celebrity is using our brand... so you should/may too, if you like him/her!'.

Where this communication happens is actually immaterial, in my opinion. Just because a brand updates its social media properties every day, twice a day, it doesn't mean that channel is vastly different from say, a printed advert or a TVC. It is all a brand telling its audience something about itself. The crux anyway is, is the brand using the celebrity to enhance its reputation? If yes, I'd wager the celebrity deserves a cut in the promotional spend, even if it costs zilch to create that communication for Facebook (or Twitter), unlike a print advert or TVC where media, creative and production charges are involved.

Let me play devil's advocate now - what if an employee from the brand puts the photo (in the 2 examples above) in his personal Facebook profile and Twitter timeline?

The argument would be interesting - individuals cannot afford print or TV advertising, or do not have the wherewithal to do advertising for the brand they are working with. But they sure have the means to use social media to do promotion for the brand they work with - after all, it takes just a phone with internet connection to do so.

So, how would things be different if an employee does it, and not the brand's handle online?

Let me throw another spanner here. Katherine would not sue a publication if it has her photos... she gains in terms of publicity/visibility and the magazine/newspaper gains too, from her celebrity status. Now, can Duane Reade argue that their Twitter handle is an effort towards making the brand as a media vehicle? After all, brands-as-media (or brands-as-publisher) is a valid trend, right?

So, if a Cosmopolitan can sell copies by having an actress' photo in it, why can't a pharmacy chain do the same, in their own media vehicle online? Can we argue that the core business of the pharmacy chain is to sell drugs and not being a media vehicle?

Interestingly, Heigl's lawyers invoke section 43(a) of the Lanham Act, which states,

False designations of origin, false descriptions, and dilution forbidden

(a) Civil action

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

What they specifically invoke is how Duane Reade's audiences (on Twitter, in particular) will react to that tweet. Will they go, 'Oh, here's a harmless pic of Heigl walking out of a Duane Reade store that Just Jared had shared'?. Or, will it be, 'Oh I loved Heigl in Grey's Anatomy. If she buys her drugs from Duane Reade, perhaps I will too, instead of Walgreens CVS!'.

More than the question about affiliation, or endorsement, it is the angle of permission, or the lack of it, that interests me in this case. Should Duane Reade seek permission from Heigl for putting that photo up on their social media properties? Just Jared, the paparazzi website, did not. Why? Because it is a media property, that's why? Can Duane Reade claim the same thing... that their Twitter handle is a media property and not just a brand channel?

In any case, Heigl is not the only one. Sandra Bullock has an earlier (2012) lawsuit where she alleges that the brand ToyWatch uses her name to advertise a watch that she wore in the film The Blind Side! Now, recall my example using the sunglasses!

This is a fascinating case to watch! I'm eagerly looking forward to the arguments used in this case, for and against Duane Reade.

Meanwhile, another celebrity clearly has no problem in associating himself with Duane Reade... in fact he says so, on Twitter and Duane Reade has retweeted his tweet too!

PS: I see a LOT comments pointing to the way Duane Reade has framed their tweet - that it seems to imply an endorsement than just putting up her photo. This is a fair question, but let me turn it around and ask this: is it ok for Duane Reade to print a photo that Just Jared had shared online, add a note below the photo saying, 'Thanks Katie Heigl, for shopping in our store' and putting it up in the glass doors of *all* Duane Reade stores in America? I assume that amounts somewhat to putting up a tweet, regardless of how they frame it. But, is that - a combination of a printed photo on all stores + a seemingly harmless and thankful text - kosher? How would people walking by assume this gesture to be? Endorsement?