By: David Gabor
A case filed on April 9, 2014 in New York Federal District Court highlights the tension between celebrity endorsements and ordinary First Amendment communications in the digital age. The actress Katherine Heigl, who starred in various middlingly-successful motion pictures, has sued the drugstore chain Duane Reade Inc. for $6 million in damages for tweeting a paparazzi photo of her leaving one of its stores holding Duane Reade shopping bags, with Twitter the tag line: “Love a quick #Duane Reade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.”
In her complaint, which alleges deceptive advertising in violation of the federal Lanham Act as well as a New York civil rights statute protecting the use of a person’s likeness, the actress argues that Duane Reade has tried to trick consumers into believing that she has made an endorsement of the company’s brand. The complaint further argues that the image and text has stripped the “story” of any viable news content. To that end, Heigl’s legal team argues that Duane Reade is attempting to obtain what essentially amounts to free advertising at Miss Hegel’s expense – without paying her – by turning her random shopping excursion into an advertisement.
The case raises a number of interesting questions for the advertising industry. It is well-known that the industry has moved to adapt itself quickly to the digital age. For many years now, advertisers and their agencies have moved well past print, radio and video images to which they were formerly limited. For example, it is now common practice for advertisers to run lifestyle blogs that cover topics of general interest but often focus on the latest company news or brand releases cleverly embedded within ordinary content to make it look informal or even off-the-cuff. It is the age of the non-advertisement advertisement. In many cases, readers don’t even know that an entire blog may be a paid “product” that exists solely to advertise a particular brand or item. Often, the blog, twitter feed, or other digital medium is not even connected to the company’s primary “.com” website.
Further, it is now ordinary practice to hire “digital publicists” or agencies specializing in digital media to get the word out over various new (or newish) media platforms, including Facebook, Instagram, Twitter, Tumblr, and many other even newer forms of digital media, about the latest brand event, new product release, or even new advertising emanating from the company’s creative department. More sophisticated companies and advertising agencies will hire individual “brand ambassadors,” who perhaps, while not celebrities, are “influencers” within a particular community, be it the underground dance scene in New York, Young Hollywood, or any other one of the thousands of fragmented social interest groups. Those influencers may be paid to wear a particular kind of lipstick or clothing or tweet various favorable things about the advertised product or brand. Again, the casual reader of a blog site or Twitter feed may not even realize that she or he is being advertised-to.
All this brings us back to the case of Ms. Heigl. Is the Duane Reade Tweet in question simply a communication of a fact, such as a corporate spokesman stating that “George Clooney bought a pair of our shoes last week at our store in Paramus, New Jersey,” or does it create an implied endorsement, false advertising or even a violation of the celebrities right of publicity? This is the question that the New York District Court will be deciding in the near future.
A legal analysis of this question is probably not wildly different than a common sense analysis. The fact that Duane Reade probably paid for the paparazzi photo and then retweeted it with a quasi-factual statement that the actress “can’t resist” shopping at the store, would seem to an ordinary consumer to constitute an endorsement. As with any celebrity-brand association, it is a message that “a cool/hip/popular celebrity loves our products or uses our services and if you buy our stuff you will be cool, too.” This is a classic function of advertising. Duane Reade will probably assert a First Amendment defense of “corporate free speech” — a concept that seems to be gaining traction under the direction of recent U.S. Supreme Court decisions.
The fact that the Tweet emanates from Duane Reade itself would seem to be determinative. This is different than if the very same image and message were Tweeted by an ordinary Duane Reade customer who simply happened to see the actress walking out of the store. In that instance, it’s clear that even though she is a public figure, she is undertaking an activity in public without a reasonable expectation of privacy. Because the tweeter is not affiliated with the company or brand, and is not tweeting for purposes of personal or corporate financial gain, the photo and Tweet would not be actionable. This would be true even if the Tweet incidentally drove additional customer traffic to the drugstore chain.
Overall, simply because a particular advertisement or endorsement arises under a relatively new digital media platform, the law and protections of the Lanham Act should remain the same. Ideally, the New York Federal District Court will tweet the same result.