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Interactive Jury: The Case of The Six Million Dollar Tweet

Updated on June 14, 2014

Published on June 14, 2014

by Rachael O'Halloran

Jury Deliberations Requested

created by Rachael O'Halloran
created by Rachael O'Halloran

Katherine Heigl vs Duane Reade Pharmacy

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.

Katherine Heigl

On Grey's Anatomy
On Grey's Anatomy

Duane Reade Pharmacy, Defendant

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.

Social Media Interaction

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Katherine Heigl, Plaintiff

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:

The Actual Tweet

Duane Reed Pharmacy tweet about Katherine Heigl
Duane Reed Pharmacy tweet about Katherine Heigl | Source

The $6 Million Tweeted Photo

The Katherine Heigl Twitter photo that is the basis for this lawsuit.
The Katherine Heigl Twitter photo that is the basis for this lawsuit. | Source

How Hiegl Found Out

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.

So What's The Big Deal?

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 Heigl

At the 7th Annual Chrystalis Butterfly Ball
At the 7th Annual Chrystalis Butterfly Ball

The Lawsuit

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.

Diane Keaton

They couldn't show Diane Keaton without her permission, but they can talk about her without permission.
They couldn't show Diane Keaton without her permission, but they can talk about her without permission.

Toni Braxton

Toni Braxton's photo wasn't actually shown and this could have been anyone's hand. This is what sites do to get around asking permission.
Toni Braxton's photo wasn't actually shown and this could have been anyone's hand. This is what sites do to get around asking permission.

What This Lawsuit Could Mean In The Future

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.

Sandra Bullock

http://www.pinterest.com/pin/14003448815869665/
http://www.pinterest.com/pin/14003448815869665/

Previous Celebrity Lawsuits

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.

What's your opinion? Will she win or lose?

The lawsuit is primarily about implied endorsement using Heigl's name and photo without permission. Do you think Katherine Heigl has a winnable lawsuit?

See results

Do Not Copy

© Rachael O'Halloran, June 14, 2014

© 2014 Rachael O'Halloran

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  • Jodah profile image

    John Hansen 3 years ago from Queensland Australia

    Very interesting court cases Katherine. I would guess that both actresses will win, though that may not be entirely fair. Law isn't always fair and I've heard of people/companies being sued for less. "Hog's Breath' restaurant chain sued a small take away cafe here in Australia, called "Hoggie's" forcing them to change their name even though the name of the family that ran the cafe had the name 'Hog'. Good hub, voted up.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #Jodah,

    Interesting news about Hog's Breath and Hoggie's when they are both distinctive and not likely to be confused. Lawsuits are the ways people get back at others for perceived wrongs and also a way to hit below the belt for any amount one chooses to sue for, to get around the system that just slaps on the wrist for many things. Heigl, I think, has a point, but not a $6million point. lol

    Bullock is spitting in the wind. You can't control what people search for. Sometimes they don't know the name of the watch she wore in a movie and the only identifying factor was to search for Sandra Bullock's watch. And it worked! They got the results they were looking for. Too bad she doesn't like the fame that goes across the board into all aspects of life. I think this is another case of trying to control people's 1st Amendment rights. They can search for whatever they want - the search engines return whatever has already matched up with other people's searches. To remove Sandra Bullock's watch from search engines would only be temporary until the next set of people searched for Sandra Bullock's watch. Then it would be right back in the search engine's memory so that from that point on, anyone searching for it will find it again and Sandra Bullock's efforts would be wasted. Also, anyone has to do is tag a watch with Sandra Bullock's name and voila! it shows up as a search even when nothing else does. Taking something out of search engines doesn't guarantee that other people won't tag something so it shows up in results again. Lots of search engines in the internet...trying to remove from all of them will be a big job.

    Heigl has a point too, why should a paparazzi picture be allowed to be used for advertising she didn't authorize or get paid for, esp if it looks like an endorsement. I think her case may be a precedent setting case on that point alone if she wins. That way no company will be able to use an existing pix to sell product using a celebrity without paying them for it. So after examining the end result Heigl was looking for, the case appears now to have some merit for future celebs who are in the same boat. But Bullock I don't think this applies to with the search engine but with the advertising company using her name to sell watches, she will win on that lawsuit - if Heigl wins. I think one's outcome depends on the other's outcome.

    Thanks for reading, commenting and voting, Jodah. :)

  • bravewarrior profile image

    Shauna L Bowling 3 years ago from Central Florida

    Rachael, I think Katherine Heigl has a valid case. In my opinion, the drug store was definitely trying to boost their popularity by stating that even she can't resist shopping there. It's illegal to post anyone's picture on the Internet without having a signed release from the subject. If someone shows up in a crowd, that's a different story. Well, I don't know if it's actually illegal per se, but everything I've read while learning about online writing advises to get releases from subjects whose picture you intend to post.

    As far as Sandra Bullock, I think she has a case against the jewelry company for naming the watch without her permission. I don't think Amazon is at fault, although now that they're aware Sandra did not authorize her name be attached to the watch, they should take the product down. As far as the search engines, suing them it stretching it. The search engines record human activity - they don't promote anything.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #bravewarrior,

    Yes, you are right. And, if it gets to court, she will probably win. But usually those big ticket lawsuits ($6Million) settle out of court for less just to get rid of it. It was not only illegal - and they knew that otherwise they would have been using lots of paparazzi photos - and they were definitely guilty of self-serving when they posted it.

    Her point, as you know, is exactly that -- they used her for advertising without permission and without compensation. And there were no other celebs on their Twitter or FB pages. Although they may be able to argue that it was a retweet (RT), usually a RT is tweeted directly from where you find it.

    They didn't do that. They made a new post and backlinked it to the gossip site where they found it. If they had posted it as a retweet, none of this would be going on because retweets are not the same as posting new and anyone can retweet celebs or anyone for that matter without getting permission, according to the lawsuit.

    The person manning Duane Reade's Twitter account tweeted her with @KatieHeigl which is a notification system. Whether the store actually wanted her to know or not is up for grabs, but I wonder how long she would have taken to actually see it if she hadn't been mentioned in the tweet.

    $6M is ridiculous so that's why I think it will be settled out of court. We'll have to wait and see.

    About Sandra Bullock, you are right in that respect too, as I have stated the same opinion in the article and in some of my comments.

    Thanks for reading and commenting,

    Rachael

  • MsDora profile image

    Dora Isaac Weithers 3 years ago from The Caribbean

    Interesting case! I think I understand people's right to privacy. I don't understand the motivation behind the amounts of money they ask for; but then, there is a lot I don't understand. Thanks for making us aware, and now I am interested in the outcome.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #MsDora,

    $6M is a lot, I don't know how they arrive at their figures or put a value on their celebrity. Maybe that is the amount she would have been paid for the endorsement, I don't know.

    Whatever the court releases about this case, I'll update this article. It may be a while. Courts are slow movers.

    Thanks for reading and commenting,

    Rachael

  • ologsinquito profile image

    ologsinquito 3 years ago from USA

    I'm now interested in this outcome as well. It could be potentially a very expensive tweet.

  • breakfastpop profile image

    breakfastpop 3 years ago

    Both actresses did not give permission to have their names used in connection with the store or products. I say they have a case. Voted up, interesting and awesome.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #ologsinquito

    She is donating the proceeds to her charity, but when you weigh it out, she still gets the money to use as she wishes.

    Thanks for reading,

    Rachael

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #breakfastpop

    Yes, they do. But when they put a high price tag on the lawsuit, somebody usually says "Oh the heck with it, let's settle for x amount of dollars." Sandra Bullock has been at it for a couple of years, so it isn't likely that these things get settled too quickly.

    Thanks for reading, commenting and voting,

    Rachael

  • Jackie Lynnley profile image

    Jackie Lynnley 3 years ago from The Beautiful South

    Sandra certainly should win without a doubt and surprised it is taking so long. Not sure about Katherine; she should too but being in a public place they may get by with that.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #Jackie Lynnley,

    I agree, Sandra Bullock should win her case about the watch.

    About Katherine Heigl, the issue wasn't that the photo was snapped of her. It was done by a 3rd party - a paparazzi. The issue was because Duane Reade Pharmacy took the pix off a gossip site and posted it on their own site using language that made it look like she was endorsing their company. They did it without permission and celebrity endorsements are usually paid a ton of money.

    Michael Jordan gets millions for a 30 second ad. Tiger Woods gets $10 million - or he used to before he screwed up. lol

    Anyway, she might have a case, but who knows? A judge may see it differently.

    Thanks for reading and commenting,

    Rachael

  • DDE profile image

    Devika Primić 3 years ago from Dubrovnik, Croatia

    A great insight to these cases and so interesting on the outcome. I am not sure who will win here.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #DDE

    Thanks for reading and commenting :)

  • vkwok profile image

    Victor W. Kwok 3 years ago from Hawaii

    It's interesting and worrying how something so small and innocent like a tweet could rise into a big issue.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #vkwok,

    Yes, but it was the principal behind it.

    If another company had seen the photo and looked at it as an endorsement, seeing that Duane Reade Pharmacies had gotten away with doing it, well.... before you know it - it would become a "Past Practice."

    And we all know what happens with those.

    Past practices become accepted practices. What is legal for one, becomes legal for all.

    I must admit that when I was writing this article, I didn't give it the amount of thought that it is now getting when I write these comments!!! The more I think about it and read the comments, the more I am beginning to see Katherine Heigl's point.

    If one company gets away with it, then celebrities won't be able to command those high prices they get for endorsing products.

    If she hadn't brought this up in a lawsuit (where Duane Reade took a paparazzi photo from a gossip site to use on their own website), it would only be a matter of time before other companies would swipe photos of celebrities carrying or wearing their products and use them as endorsements without paying the celebrity, without their permission (they also have a say in where their photos appear), and without their expressed endorsement of the named product.

    Companies would be on the lookout for any photos showing any celebrity carrying or wearing a company's product, take the photo to use on their website without having to pay the celebrity and without the celebrity's permission, whether they use it as an endorsement or not.

    Although it wouldn't seem to be the fact in this case, but if one is exiting a store carrying products in a Pizza Hut bag, it doesn't mean they actually eat Pizza Hut's pizza. It could mean they picked it up for someone as a favor. The same goes for any other store. One doesn't have to be labeled as the store's consumer just because they have a bag with their name on it in their hand.

    I go to thrift stores and my purchases get put in bags from Publix, from Target, and lots of other stores, which I don't patronize.

    Thanks for reading and commenting,

    Rachael

  • DREAM ON profile image

    DREAM ON 3 years ago

    The law can be very clear on what a person can or can't do. New laws will change the way we see the world.I think it will take years to see the outcome. Like you said they will probably settle out of court in one of the cases. Let us know the outcome when you finally find out. Thank you and have a nice day.

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    #DREAM ON

    When I update each article, I usually "share" it, so it shows up on the HubPages feed and I put the word UPDATE in the description. Don't hold your breath looking out for this one anytime soon. lol

    Thank you for reading and for the follow :)

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