Discovering that a celebrity stopped by your business or uses your product may seem like a dream come true. But you may want to think twice before using that celebrity’s name or image to promote your business—even on Twitter or Facebook.
Actress Katherine Heigl is suing drugstore Duane Reade for $6 million after the company posted a photo on Twitter of her coming out of a New York store on March 16 with two of its bags in tow. The complaint says that the drugstore chain, owned by Walgreen Co., used Heigl’s name and photo to advertise itself without her permission. It says Duane Reade violated federal trademark rules and the personality rights laws of New York state, according to Gigaom.
The photo was originally posted by gossip site Just Jared but then tweeted by Duane Reade on March 18 with the message: “Love a quick #DuaneReade run? Even @KatieHeigl can't resist shopping #NYC's favorite drugstore.”
Heigl’s lawsuit should serve as a wake-up call to small-business owners who might not understand the legal risks of using images of celebrities—or even mentioning in their name—in their marketing and social media. In today’s ultra-connected world, it seems that everyone has a camera and the ability to easily post photos on Facebook, Twitter and Instagram. But just because you or someone else took a photo of a famous person with your product or at your business doesn’t grant you the rights to use that image freely.
Brian Heidelberger, a media and entertainment lawyer with Winston & Strawn LLP in Chicago, did a helpful presentation for Advertising Age that explains the rules of using celebrities in social media without their permission.
If a celebrity mentions your business in a tweet or posts a photo of them with your product, it’s generally safe for you to retweet that as long as you don’t suggest the celebrity is endorsing or affiliated with your product or business. But if you link your business with that celebrity or suggest endorsement in any way, you’re setting yourself up for trouble.
Actress Sandra Bullock sued ToyWatch USA in 2012 after the company used her name to promote its diamond-encrusted watch bands after she wore the watch in the movie “The Blind Side.”
“Celebrities are litigious” and even if you win a lawsuit, the costs to fight it can be very expensive," Heidelberger wrote, adding: “So the question shouldn’t necessarily be are you legally right—but rather will you get a claim.”
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