Can Katherine Heigl really sue Duane Reade for tweeting her photo? Yes, and here’s why.


Katherine Heigl (Chris Pizzello/Invision/AP)

If Katherine Heigl makes a Duane Reade run and the drug store’s Twitter account proudly tweets a photo of her in the act (in a “celebrities run errands, too, and at our fine establishment!” kind of way), can she sue them for $6 million?

The answer: Yes, she can. And she did. And she has a case.

“Love a quick run? Even @KatieHeigl can’t resist shopping ‘s favorite drugstore http://bit.ly/1gLHctI ” the Duane Reade account tweeted on March 18 with a link to gossip site Just Jared, which ran a paparazzi photo of Heigl outside the store in New York City carrying two shopping bags.

It makes sense if you rolled your eyes at this latest news: Why would a celebrity take the time and effort to file a lawsuit for millions against a drug store about tweeting a random photo? But Heigl does have a case: In the suit filed this week, Heigl’s lawyers claim the store violated the actress’s right of privacy and publicity with “unauthorized use, done knowingly and willfully, of Ms. Heigl’s name, picture, image and likeness for commercial advertising and other trade purposes.”

In other words,  it was an unauthorized paparazzi photo used to promote the store, or as her lawyers say in the complaint, “exploit Ms. Heigl’s image for commercial gain.” (A Duane Reade rep declined to comment, citing pending litigation.)

Image is the key in this case, says D.C. attorney Paul Jorgensen, who specializes in trademark, intellectual property and contract law. For actors, image is everything — in the Hollywood universe, it can be more important than actual acting. As a result, it’s crucial to control a personal brand, even if means a star may have to go to extraordinary means to protect it.

“Going out and suing someone may seem like overkill,” Jorgensen said. “But if [a celebrity] is sick and tired of people saying they endorse this and that, and they’re not getting monetary benefit and want to rein that in — they can say, ‘I’m going to control my image.’”

Generally, an endorsement deal between a company and a celebrity is carefully crafted: There’s a written agreement that a company can use a certain image, in exchange for a certain amount of money, for a certain amount of time. With the Duane Reade photo, it implies that Heigl was endorsing the store, even though she wasn’t paid. That’s another sticking point in the complaint: “When [Heigl] chooses to endorse a product or service, she is highly selective and well compensated,” it reads.

If you’re an A-list star and have a lot of business deals, maybe something like this is not going to bother you, Jorgensen said. However, if you’re an actor concerned about finances or actively negotiating a contract or between jobs, this issue becomes more important than ever.

That sounds like Heigl, who is trying to make something of a comeback: Although she used to be a very bankable star, thanks to a lucrative gig on “Grey’s Anatomy” and films such as “27 Dresses” and “Knocked Up,” she fell from Hollywood’s good graces. That was mostly a result of doing things like publicly railing against her “sexist” role in “Knocked Up,” or in the most famous example, withdrawing herself from the Emmy race because she felt the “Grey’s” writers didn’t give her good enough material.

Right now, she’s attempting to get back on TV with a role in an NBC drama pilot. So it makes sense that she and her reps are policing her image extra carefully. (Her lawyers say if she wins the $6 million judgment, the money will go to her charitable foundation.)

Overall, the world of celebrity endorsements can be a confusing place. After all, what’s the difference between what Duane Reade did and a company that sends out an announcement when, say, Selena Gomez is spotted wearing their brand of sunglasses?

It can be tough to tell, Jorgensen said, and sometimes it’s a very fuzzy line in the Hollywood world between a photo of “I just happened to be driving a particular type of car” and a picture intended to show that the celeb endorses it. There are often behind-the-scenes deals in which famous people are paid to just “accidentally” be photographed wearing a certain brand, even if they’re not officially a spokesperson.

Though it can be tough to tell for consumers, companies need to remember the difference; as this situation illustrates, it can lead to trouble if there aren’t set guidelines between the celebrity and the brand.

In conclusion, Jorgensen explains, “To publish a photo that implies [someone] is endorsing a business is not a good idea unless there is a deal there.”

Emily Yahr is an entertainment reporter and pop culture blogger for the Style section. She joined the Post in May 2008, a week before she graduated from the University of Maryland, and worked on Lisa de Moraes' TV Column and blog.
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