Is a Tweet a Commercial Advertisement?

Unknown-1A single tweet has proven problematic for New York pharmacy chain Duane Reade.   Actress Katherine Heigl recently filed a $6 million lawsuit against the company, alleging violations of the Lanham Act and right of privacy and publicity, along with unfair competition under New York law.

Heigl was in New York filming a TV pilot, and was photographed by an intrepid paparazzo while leaving a Duane Reade store carrying store-branded bags. Duane Reade found the photo and ran with it.  On March 18, it tweeted the image to its 2.02 million followers with the caption: “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” A similar post appeared on the store’s Facebook page.

In her complaint, Heigl states that she immediately objected to the tweet, and when Duane Reade failed to respond, she filed suit in federal court, claiming that she “carefully and deliberately protected her valuable professional name, picture, image, likeness, and persona – that is, her legally-recognized right of privacy and publicity – from exploitation through unauthorized commercial advertising.”  She also claimed that she is selective when it comes to choosing which products to endorse, and when she does so, she is well compensated.  The complaint further alleged that use of her image “improperly exploited plaintiff’s name and likeness, as a celebrity for defendant’s commercial advertising and purposes of trade, without authorization,” the complaint alleged.

This case underscores the challenges that social media presents to marketing.  Celebrities are brands unto themselves, and Duane Reade, recognizing the value of Heigl’s visit, sought to capitalize on her brand via a single tweet. Duane Reade may argue that the tweet was simply a factual communication to its followers concerning Heigl’s visit, but under these circumstances, it is difficult to discern any difference between the tweet and an advertisement.  After all, if Duane Reade placed an ad in a magazine with a circulation of 2 million people that featured Heigl’s photo with the caption “Katie Heigl can’t resist shopping at NYC’s favorite drugstore!” without the actress’s consent, it would be digging into its wallet right now.

Regardless of the ultimate outcome of the case, companies should think twice before tweeting images of celebrities shopping at their stores.

Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.
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