Katherine Heigl has been out of the limelight of late, but thanks to a $6 million lawsuit against
Duane Reade, she's primed to deliver a ruling that could impact how businesses use social media.
The actress is upset that the drug store posted on Twitter and Facebook a paparazzi photo of her
carrying the chain's shopping bags. She's suing in New York federal court with claims that the
defendant has violated the false advertising provision of the Lanham Act, as well as New York
civil rights statutes protecting use of likenesses for purpose of trade.
It's likely that as the case proceeds, Duane Reade will put up a First Amendment defense that will
attempt to protect its social media postings as expressive rather than commercial speech. Thus,
the nature of how corporations tweet will be subject to a judge's analysis. On one hand, it's long
been acknowledged that professionals lean on the medium to promote themselves. On the other,
even corporations can sometimes convey newsworthy information, and as recent Supreme Court
rulings have suggested, they too have First Amendment rights. It's not often clear what are the
commercial and noncommercial uses of the Twitter platform.
In Heigl's complaint, she attempts to put Duane Reade into the realm that's outside the boundaries
of free speech. Her lawyers at Ballard Spahr write:
"Duane Reade's Twitter account normally includes only occasional Duane Reade products or
store premises photographs displayed as the user scrolls through the Tweet postings. But among
recent photographs, Plaintiffs image stands out as the only celebrity image, thereby designed to
exploit Plaintiffs image to suggest false cachet for Defendant's Twitter page and imply falsely that
Plaintiff endorses Defendant. 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 included in reporting on entertainment-industry news."
The commercial or noncommercial aspect of Duane Reade's tweet won't be the only factor that
determines the outcome of the lawsuit. In a claim under section 43(a) of the Lanham Act, there's
also the issue of how the drug store's followers will interpret the tweet. Since there appears to be
no question that the tweet was literally true, the case might turn on whether consumers were instead
given the misleading impression that Heigl had endorsed the drug store.
Source: THR
Duane Reade, she's primed to deliver a ruling that could impact how businesses use social media.
The actress is upset that the drug store posted on Twitter and Facebook a paparazzi photo of her
carrying the chain's shopping bags. She's suing in New York federal court with claims that the
defendant has violated the false advertising provision of the Lanham Act, as well as New York
civil rights statutes protecting use of likenesses for purpose of trade.
It's likely that as the case proceeds, Duane Reade will put up a First Amendment defense that will
attempt to protect its social media postings as expressive rather than commercial speech. Thus,
the nature of how corporations tweet will be subject to a judge's analysis. On one hand, it's long
been acknowledged that professionals lean on the medium to promote themselves. On the other,
even corporations can sometimes convey newsworthy information, and as recent Supreme Court
rulings have suggested, they too have First Amendment rights. It's not often clear what are the
commercial and noncommercial uses of the Twitter platform.
In Heigl's complaint, she attempts to put Duane Reade into the realm that's outside the boundaries
of free speech. Her lawyers at Ballard Spahr write:
"Duane Reade's Twitter account normally includes only occasional Duane Reade products or
store premises photographs displayed as the user scrolls through the Tweet postings. But among
recent photographs, Plaintiffs image stands out as the only celebrity image, thereby designed to
exploit Plaintiffs image to suggest false cachet for Defendant's Twitter page and imply falsely that
Plaintiff endorses Defendant. 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 included in reporting on entertainment-industry news."
The commercial or noncommercial aspect of Duane Reade's tweet won't be the only factor that
determines the outcome of the lawsuit. In a claim under section 43(a) of the Lanham Act, there's
also the issue of how the drug store's followers will interpret the tweet. Since there appears to be
no question that the tweet was literally true, the case might turn on whether consumers were instead
given the misleading impression that Heigl had endorsed the drug store.
Source: THR