Katherine Heigl Vs Duane Reade: Twitter Photo Lawsuit Is Not As Crazy As It Sounds, Legally Speaking

Social media isn’t being very kind to Katherine Heigl this week.

On Thursday, news broke that the “Grey’s Anatomy” star is suing Duane Reade Inc. over a photo that the drugstore chain posted to its Facebook and Twitter pages. In the photo, an unsuspecting Heigl is seen exiting a Manhattan Duane Reade store carrying two large Duane Reade shopping bags.

“Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore,” the accompanying tweet read.

According to Heigl’s lawyer, who filed a federal lawsuit on Wednesday, the tweet was tantamount to an advertisement, except that Heigl never gave her consent to appear in said advertisement. Now the actress is seeking $6 million in damages, money she says will go to the Jason Debus Heigl Foundation, an animal rights group named for her brother, who died in 1986 from injuries he sustained in a car accident.

A promising box office draw following the success of 2007’s “Knocked Up,” Heigl has seen her public image suffer in recent years amid reports that she is ornery and difficult to work with. Needless to say, the lawsuit against Duane Reade has done little to counter that perception, at least if reactions on Twitter can be used as a gauge.

But while popular consensus might see Heigl’s legal complaint as frivolous saber-rattling from an embattled celebrity who takes herself a bit too seriously, legal experts say the lawsuit isn’t as crazy as it sounds. Consider that the Duane Reade Twitter account has more than 2 million followers; its Facebook page has another 107,562 likes. That’s a lot of potential customers looking at what is essentially a brand endorsement, one willfully spread by the brand’s owner without Heigl’s consent. If Heigl’s legal team can successfully spin it that way, Duane Reade could have a problem.

“Looking at the complaint, they did a pretty good job of portraying Duane Reade’s Facebook and Twitter accounts as being for the purposes of advertising,” said Mickey Osterreicher, a media and copyright lawyer and general counsel for the National Press Photographers Association. “The real nexus of the argument in this thing will be whether this was for commercial purposes.”

News of the lawsuit broke on Wednesday, and the photo in question remained on Duane Reade’s Twitter page until Thursday afternoon. It has since been deleted. The image of Heigl appears to have initially come from the gossip website Just Jared, where it remains watermarked with the Just Jared logo. Just Jared is not named in the lawsuit, however. That’s because the suit concerns not the image itself, but how it was used -- in this case, allegedly, as an endorsement for Duane Reade.

It’s unclear whether Duane Reade had permission from Just Jared to tweet the photo, but given the often-capricious nature of social media, it would not be surprising if it didn’t, nor would it necessarily change the nature of the complaint. Duane Reade is a unit of Walgreen Company (NYSE:WAG), which acquired the rival drugstore chain in 2010, but was not named in the lawsuit. A spokesperson for Duane Reade said the company does not comment on pending litigation.

Because the photo of Heigl was taken in public, the actress had no reasonable expectation of privacy. Had the photo remained on Just Jared, or another tabloid website, Heigl would have little legal recourse. Osterreicher said photos taken and used for editorial purposes are protected by the First Amendment, so long as they are not used to defame their subjects or unfairly hold them up to ridicule.

But that all changes if a photo is used in an advertisement, which, when done without the person’s consent, is a clear violation of New York civil rights law.

And what about that $6 million in damages? While on its face it might seem excessive, Osterreicher said it’s difficult to nail down the monetary value of a celebrity’s likeness. “It might not be out of line,” he said. “Had Duane Reade come to her and said, ‘Hey, we love the way you look. We hear you shop at Duane Reade. We’d love to negotiate with you for you to be our spokesperson.’ Six million for her seal of approval and endorsement might not be out of the question.”

None of this is to say that the lawsuit is a slam dunk. Duane Reade probably will argue that its social media postings are expressive, not commercial. And seeing how decades-old copyright and privacy laws are still trying to play catchup to this relatively new world of Facebook and Twitter, it’s difficult to say whether a court would agree. Scratch just below the question of whether or not a tweet can be deemed an advertisement, and you’ll see a photo of a celebrity who had pretty clearly just finished shopping at Duane Reade. Was Duane Reade exploiting that shopping trip for its own commercial gain, or was it merely pointing out something that Heigl, a public figure, was doing? Like much of what happens on Twitter, it all depends on who is tweeting, and who is listening.

In the meantime, at least one fellow celebrity has said he’d very happily take Heigl’s place. Piers Morgan, whose CNN show was recently canceled, tweeted the following plea to Duane Reade on Wednesday evening: