Earlier this month, Katherine Heigl sued Duane Reade for $6,000,000 for tweeting a paparazzi photo of her leaving a Duane Reade drugstore, together with the caption “Love a quick #DuaneReade run? Even KatieHeigle can’t resist shopping at #NYC’s favorite drugstore.” In the fifteen-page complaint, Heigl charges Duane Reade with (1) violating section 43(a) of the federal Lanham Act, (2) misappropriating Heigl's right of publicity under New York law, and (3) committing common law unfair competition.
This bit of celebrity-meets-Lanham Act news is the perfect opportunity for reminding brand owners that they should treat social media the same as they would any other advertising medium, and that it is impermissible to create the impression that a celebrity, or anyone else for that matter, is endorsing your product or service without their permission. As a brand owner, the rules for what constitutes acceptable content for posting or tweeting on social media are different than those for individuals or news outlets. While the posting and tweeting of editorial or factual content by a brand owner may be permissible, care should be taken to avoid anything that suggests a sponsorship, affiliation, or endorsement (unless authorized), or that is otherwise in violation of the rights of publicity or privacy.