The company posted a photo of Heigl walking on a street while carrying large shopping bags with the store's logo on them, along with this now-deleted tweet: “Love a quick #DuaneReade run? Even @KatieHeigl can't resist shopping #NYC's favorite drugstore.”
That tweet prompted the “Knocked Up” star to sue the drugstore for turning her into an unpaid endorser. “Plaintiff's picture, image and likeness enjoy wide-spread recognition and monetary value,” she alleges in a complaint filed on Wednesday in federal court in New York. “Accordingly, when Plaintiff chooses to endorse a product or service, she is highly selective and well compensated.”
The image appeared to have come from the gossip site JustJared.com, which ran an item about Heigl changing agencies. Duane Reade “misappropriated and purloined the photograph for use completely unrelated to its original news context, by stripping the photo of its original editorial context,” she alleges.
Heigl goes on to argue that Duane Reade's use of the photo “falsely implies that [she] sponsors, endorses, or is affiliated with Defendant's goods and services and is likely to cause consumer confusion.”
Heigl might well have a point. It's long been the case in New York that companies can't simply use names or photos of people in ads without their permission, and Duane Reade obviously hoped that a photo of Heigl with the store's bags would give it a boost with consumers.
But Duane Reade also can argue that it has a free speech right to post accurate information about its business. Some observers are already on record as saying this tweet might be protected speech. For instance, attorney Marc Reiner with Moss & Kalish reportedly compared Duane Reade's tweet with a store's statement about celebrity clients to the press. “You often see companies, usually smaller ones, touting the appearance of their products in connection with celebrities,” Reiner told The Wall Street Journal. He adds that consumers probably wouldn't think that the tweet was the product of an official endorsement arrangement.