New York pharmacy chain Duane Reade’s social media team might be getting an expensive lesson in how not to tweet. And that means the rest of us get a free reminder about the perils of using celebrity photos in social media.
First the news: Actress Katherine Heigl is suing Duane Reade in New York federal court, seeking $6 million for posting — on Twitter and Facebook — a paparazzi shot of her walking out of one of chain’s stores last month.
Here’s the text of the tweet (which was deleted from the @DuaneReade account this week, after news of the suit broke):
Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore http://t.co/l4Ge1lEKL9 pic.twitter.com/uGTc3k1Mii — Duane Reade (@DuaneReade) March 18, 2014
The suit alleges that the social media posts constitute commercial advertising, “aimed at attracting customers and revenue, especially social media savvy customers in the covered young adult demographics.”
It’s not an unreasonable argument. “Courts are perfectly willing to treat these kinds of tweets as advertising and promotion,” University of Maryland Law Professor James Grimmelmann told AdWeek. “That means that despite the spontaneity of what comes up in social media, brands need to be thinking about it with the foresight that they use with advertising in newspapers and magazines.”
Many people believe that social media is a different — more permissive — animal, but it’s unlikely courts will agree. To be safe, brands who want to tap into celebrity endorsement opportunities should get permission first.
I believe Duane Reade is on especially shaky ground in this case because it pulled the photo from the Just Jared gossip website and posted it on Facebook and Twitter, apparently without permission from the copyright holder. (I can find no evidence of Just Jared posting the photo on Twitter or Facebook.)
Duane Reade’s possible defense would be much stronger if it had been reacting to organic posts about Heigl’s patronizing its drug store, instead of trying to spark a conversation.
“If the brand can make it clear that they’re not involved with it, that they’re flattered by it and that they’re not going to use this as the centerpiece of a marketing campaign,” said Grimmelmann in AdWeek, “not only will you be on the right side of the law, you’re less likely to tick off the celebrity.”
Here’s the full text of the lawsuit: