Last month, drugstore chain Duane Reade boasted on Twitter that actress Katherine Heigl shopped at the store.
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.