The Case of The Six Million Dollar Tweet

This case is a little departure from my usual copyright infringement cases, and I thought you might appreciate reading about a different type of lawsuit.

Many newspapers are calling this lawsuit "ridiculous" and some columnists are slamming it badly, even taking creative license to stretch the lawsuit's wording to make it sound even more ridiculous.

But who knows? It might have merit, because if this case ever gets to a courtroom, how celebrity photographs are re-used after they are published on another website may become a very big deal.

This case was just filed in April 2014, so it has not come up on the court docket yet. I include it here for your opinions and reading pleasure. When there is a verdict, I will update this article.

Duane Reade is the name of a pharmacy chain, now owned by The Walgreen Company who does business as (d/b/a) Walgreens Pharmacy.

Walgreens is the largest retail pharmacy in the United States, with over 8700 stores scattered in the US Virgin Islands, Guam, Puerto Rico, District of Columbia and all 50 United States.

They bought Duane Reade Inc. in February 2010 for a little over one billion bucks, which included the debts they owed. They sold off a good many stores, slapped Walgreens signs on some of them, but kept the Duane Reade name on a handful of stores in New York state.

The company name came about because their original Lower Manhattan warehouse was located at Duane and Reade Streets named after two early American politicians James Duane (1733-1797) and Joseph Reade (1694-1771).

Duane Reade Inc. is being sued by actress Katherine Heigl for $6 million for tweeting her photograph on Twitter and for posting it on their Facebook page, implying she endorsed their company.

In March 2014, Katherine Heigl, an actress known for her work on the medical TV show "Grey's Anatomy" and in the movie "27 Dresses," was in New York City filming the pilot for her upcoming NBC drama “State of Affairs.”

She and her mother went shopping at a Duane Reade Pharmacy store and a paparazzi snapped a photograph when they were exiting the store.

The photograph shows Katherine Hiegl carrying two bags with the Duane Reade Pharmacy logo printed on them.

Duane Reade Pharmacy saw the picture posted on a celebrity gossip website, and decided to post it on their own Facebook page.

Then they tweeted the photograph with the following message:

Duane Reade Pharmacy - either knowingly or unknowingly - notified Katherine Hiegl in the actual tweet when they used the "@KatieHiegl" tag. This caused the tweet to show up in Hiegl's Twitter notifications. Who knows if she would ever have seen it otherwise, unless she was glued to her Twitter account.

The big deal is Katherine Heigl feels the pharmacy chain used the photo as a celebrity endorsement.

In the media, celebrity photos appear in advertising all the time, usually with their knowledge. It is legally required that permission be obtained if someone wants to use a celebrity's name or photograph, especially in any print media like advertisements, magazines and newspapers.

If someone just talks about a celebrity, like I am doing here with Katherine Hiegl, getting permission is not required.

The lawsuit is using the word "advertorial."

If you put the words "advertisement" and "editorial" together, you get an "advertorial" which is a word that was coined back in the 1940's. Advertorials are articles talking about a celebrity and appear in newspapers, magazines or website publications.

But if the celebrity has a product in their hand or is somehow using a product, a company can be tempted to use it as an advertising tool. In this case, they would have to get the celebrity's permission to use their image or name.

And that is what is at the center of this six million dollar lawsuit. Duane Reade illegally used her name and photograph in a tweet disguised as an advertisement for their stores.

Katherine Hiegl alleges that by using her name and image without her permission in order to advertise their company that Duane Reade misled the public to assume she was endorsing their company. Duane Reade has over two million followers on Twitter and Facebook who have seen the tweet and Facebook post and in Heigl's eyes, that is two million people who think she endorses the company.

The lawsuit cites violation of the federal Lanham Act, New York Civil Rights Law, and New York's common law of unfair competition.

The Lanham Act states that any false advertising or misleading representation can be compensated if the person believes that the misrepresentation damaged them or their reputation. The New York Civil Rights Law prohibits the use of a living person's name, picture or voice without prior consent for advertising or commerce.

In the complaint, Katherine Heigl says she "suffered financial and reputational injury because she was deprived of her right to choose and control her own endorsements and how they are shown to the public."

She asked for six million dollars in damages plus additional attorneys' fees and costs -- and to prohibit Duane Reade from ever using her name or image again for any advertising including all social media outlets.

She intends to donate the proceeds to her animal welfare charity, the Jason Debus Heigl Foundation. This is a charity that she and her mother set up in honor of her late brother, who was tragically killed in a 1986 car accident.

Although Duane Reade Inc can use the First Amendment as a defense to say their posts on the social networks were expressive and not commercial, a judge will have to decide how the presentation looks Duane Reade's Twitter and Facebook accounts.

And that's where the First Amendment defense falls flat, says one legal analyst.

On their Twitter and Facebook accounts, the lawsuit alleges that Duane Reade's accounts only occasionally show any products that they sell in their stores or pictures of their storefronts. Although both the photo and tweet concerning Katherine Heigl has been removed both accounts, she contends that the company's use of her image and name stands out as the only celebrity image on their Twitter account which implies that she endorses them.

The lawsuit says: "As a consequence of her work in the entertainment world, Heigl is a highly recognized celebrity. On information and belief, Defendant has singled out Plaintiff simply because she happened to be a customer on one occasion at a Duane Reade store, and a photograph of that occasion happened to be reported on an entertainment industry news website.

"Defendant wrongfully tried to profit by distributing the snapshot with the chain’s promotional slogans on its official Facebook and Twitter accounts without Plaintiff's “knowledge or approval.” When Plaintiff chooses to endorse a service or product, she is highly selective and well compensated. Using her name and likeness for Defendant's commercial advertising and purposes of trade without authorization violated Plaintiff's rights."

How the store's followers interpreted the tweet will also come into question. Were consumers given the misleading impression that Katherine Heigl endorsed Duane Reade stores?

I want to know how they are going to "interpret" if two million people "were mislead" from the posts. They can't haul two million people into court, obviously, so that interpretation will be pretty vague.

Heigl's attorney posed this question: "If a celebrity shops at a certain store, or is seen coming out of a certain store, when does that become an advertisement for the store?"

Heigl's attorney has sent many cease and desist notices to Duane Reade Inc imploring them to stop their false advertising on the social network accounts. Duane Reade ignored all of them and that is when Heigl filed the lawsuit.

There is no doubt Duane Reade used her image and name without permission. However, they did not snap the photo - the paparazzi did. Duane Reade snagged it from another website. Retweeting (RT) is not viewed the same as using a celebrity's name and image without permission. However, Duane Reade did not retweet. They posted it as a new post and only showed the site where they picked up the photo.

If this lawsuit is found in Heigl's favor, celebrities will be going after anyone who uses their name or image without permission if it appears to be an endorsement. This can potentially tie up the courts for years.

Since March 2012, Sandra Bullock has been in litigation against Amazon.com and United States Jewelry Liquidators for advertising a watch as "The Sandra Bullock Watch," "Bullock Watch" or "the watch Sandra Bullock wore in the movie The Blind Side" in order to boost sales.

She successfully sued ToyWatch USA for using her name to promote a diamond encrusted watch. The lawsuit cited that the company was infringing on her publicity rights and violating her civil rights where she was deprived of the right to choose which products to endorse.

She is in separate litigation for several search engine companies who promote the search terms "Bullock" and "Sandra Bullock's Watch" on their websites and on Google AdWords because of the high number of results, proving it to be very marketable.

Because celebrities own and use their names as trademarks, just the same as authors do, they can also sue for trademark infringement. Advertisements and marketing on search engines have been using Sandra Bullock's name to advertise, market and promote various products she has never endorsed.

I performed a search for "Sandra Bullock's Watch" and got back 3,549,000 results. With results like that, she clearly has a valid point.

Whether the lawsuit is winnable or not is another matter. You can't control what people search for and typically search engines list the words that are most commonly searched. So in my opinion, this is another lawsuit that will be impossible to win. But I'm not a lawyer. I'm an armchair juror, like you.

If Sandra Bullock wins, I'll have to eat my words. So we'll see. As soon as I see the lawsuit verdict, I'll post it here.