When can you tweet a celebrity photo? Actress Heigl sues drugstore over Twitter pic

Katherine Heigl, a former star on Grey’s Anatomy, is not happy that New York drugstore chain Duane Reade tweeted a picture of her leaving its store. Now, she is suing the company for $6 million in damages, which Heigl says she will donate to a charity named for her late brother.
The conflict, which raises interesting questions about endorsements in the age of social media, began after gossip site JustJared posted pictures of Heigl leaving a store with her mother, carrying shopping bags. Soon after, Duane Reade tweeted the photo along with a gleeful caption. Here’s a screenshot of the tweet taken from Heigl’s lawsuit:
Katherine Heigl Duane Reade Tweet
Normally, celebrities can’t do much about people taking their picture in public place — it’s just part and parcel of the whole rich and famous thing. And, indeed, Heigl’s lawsuit, embedded below, suggests that JustJared had a right to post the photos since they were “news” (it’s not clear why anyone going to the drugstore is ever “news” – but that’s another story..)
According to Heigl, Duane Reade crossed the line by adding the captions. In her view, this was an unauthorized endorsement in violation of federal trademark rules and the personality rights laws of New York state.
She appears to have a case in that celebrities have a right to control the way their images are used for endorsement. You can’t, for instance, take a photo of Heigl walking by your donut shop and then use the snap to plaster billboards around the city that suggest she likes your donuts.
The Duane Reade case is a little more nuanced, however, in that it involves Twitter which, by its nature, is often associated with fleeting news events. If JustJared had tweeted the original photo and Duane Reade has retweeted it with its own caption, the company would be in a stronger position to say it a fair use right to share the photo. Instead, Duane Reade’s behavior looks more like a calculated decision to use an authorized endorsement rather than any form of news reporting – a claim Heigl’s lawyers make repeatedly in the complaint. (It’s also not clear if the drugstore bought the rights for the photo from JustJared — if not, it could be facing a copyright case too).
So what was Duane Reade thinking? The tweet appears reckless, especially given Heigl’s prickly reputation, and its reported refusal to delete the tweet.
Duane Reade has yet to comment so it’s unclear if the tweet was the work of an over-zealous social media staffer or, instead, a calculated risk to drum up maximum publicity. My guess is the latter, especially after the drugstore chose to retweet this message from minor CNN celebrity Piers Morgan:

This “no apologies” attitude is also unlikely to win support from a judge, meaning that the likely outcome of this is a quiet settlement a few months from now. The charity named in the lawsuit is the Jason Debus Heigl Foundation, an animal rights foundation named for Heigl’s brother who died in a 1986 car crash.
What do you think? Should Duane Reade have to pay for using the Heigl pic in this way?

Heigl Complaint vs Duane Reade

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