Right of Publicity Lawsuit against Duane ReadeCan a business tweet a photo image of a public figure buying products at its store without the individual’s permission? Former Grey’s Anatomy start Katherine Heigl says no, and has filed a $6 million lawsuit against New York pharmacy/drugstore chain Duane Reade for doing so.

A March 18, 2014 tweet by Duane Reade posted a candid photo of Heigl running errands and purchasing goods at its drugstore:  “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.”  The photo was a typical paparazzi shot, showing Heigl walking down the street, looking away from the camera, while she was exiting a Duane Reade store and carrying Duane Reade shopping bags.

According to Heigl’s lawsuit, Duane Reade violated federal and state right of publicity and false advertising laws by “improperly exploiting” her name, likeness, and image, for commercial advertising, without her permission (or compensation to her.)  The lawsuit also asserts that Duane Reade engaged in unfair competition through false advertising by implying that Heigl endorsed or sponsored their products.

A little extreme? Perhaps.  But the lawsuit raises an interesting question — is everything a public figure or celebrity says or does considered an endorsement? For example, should celebrities or public figures be entitled to compensated for photos taken of them running errands, shopping at grocery stores, or even picking up pizza? Does a celebrity’s presence buying coffee at a local Starbucks constitute an endorsement of that product?

In California, individual privacy rights include the “right of publicity,” and makes it illegal for companies or individuals to use the names or likenesses of others, without their permission. Claimants must generally demonstrate that there was a use, for profit, of the individual’s identity, without consent, that resulted in injury to the individual.   There are several exceptions, such as the use of or likeness to report news-worthy events, or a use that is so “transformative” that its primary value is not derived from the celebrity’s fame. There are both common law claims for misappropriation of name or likeness, as well as a statutory violation (Cal. Civil Code §3344) for the use of a name, voice, signature, photograph or likeness, for commercial purposes, without consent.

As the Hollywood Reporter correctly points out, Duane Reade has a reasonably strong First Amendment defense that its social media tweets were expressive rather than commercial in nature, but one key factor will be whether Duane Reade’s twitter followers took the tweet to false and deceptive in conveying a misleading impression that Heigl endorsed their store.

After all,  Duane Reade is probably not making any money from  the photo of Heigl itself.  So this use would be distinguished from tabloid-style websites that post celebrity mug shots and earn revenues through sponsors or advertising. In those cases, it would be the photo itself that generates the revenue, since the photos are what is drawing consumer interest and viewership.  This is also not a situation in which the celebrity’s use of a product is being aired on a broadcast television show or film without the product manufacturer’s knowledge, awareness, or approval, generating royalties or product endorsement income  — in this case,  the use is by the owner of the business establishment itself, depicting a patron leaving its very own store.  Very similar to the ubiquitous photos that line the walls of popular eateries, depicting famous patrons posing with the owner.

It is unknown how the lawsuit will ultimately be decided — but Heigl writes in the lawsuit papers that any money she receives from it will be donated to the Jason Debus Heigl foundation, which is a charity in the name of her deceased brother, who died in a fatal car accident in 1986.

Axis Legal Counsel offers representation to individual and business clients in numerous infringement, trademark, copyright, right of privacy, right of publicity, false advertising, unfair competition, and other similar types of disputes. For information on retaining Axis Legal Counsel to represent you in connection with any right of publicity or false advertising matter, contact info@axislegalca.com or call (213) 403-0130 for a confidential consultation. Axis Legal Counsel serves clients throughout Los Angeles and California.