Celebrities and Social Media: What Are The Legal Perils For Brands?

Duane Reade Katherine HeiglLast week everyone was talking about the latest social media campaign gone wrong: drugstore chain Duane Reade tweeted a picture of celebrity Katherine Heigl leaving one of their stores, along with a message that sounded like a product endorsement by the actress — all without her consent. Now, the drugstore chain faces a lawsuit for $6 million.

The tweet read: “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC‘s favorite drugstore” and included an image of Heigl leaving a Duane Reade store, holding two of the brand’s shopping bags.

Social media can be a murky area for brands, especially when photos of well-known public figures are involved.  Samsung successfully garnered the most re-tweets ever with Ellen’s selfie of herself and other movie stars at the Oscars, capturing a fun moment at one of the most-watched events of the year.

However, the brand then came under fire from the White House for using a selfie of Boston Red Sox player David Ortiz with President Obama to promote the Samsung brand (without the President’s permission).  Ortiz snapped the photo – with a Samsung phone – on a visit to the White House after winning the World Series, and then Samsung promoted the photo to its 5.2 million followers on Twitter. As of today, Ortiz’s original tweet with the selfie image has seen over 43,000 retweets.

White House spokesman Jay Carney told CNBC that “… I can tell you that as a rule, the White House objects to attempts to use the president’s likeness for commercial purposes, and we certainly object in this case.” Ortiz’s marketing deal with Samsung was not revealed until after the photo was taken.

According to CNBC, both stunts (Ellen’s Oscar selfie and Ortiz’s presidential selfie) generated “as many wagging fingers for bad taste as they did hat-tips for marketing savvy.”

In Duane Reade’s case, from a legal perspective the drugstore chain was in the wrong.  We asked NYC attorney Anthony Verna, who specializes in intellectual property and trademark law, to explain the basics. The use of Katherine Heigl’s image falls under the state right of privacy/publicity; in New York, that protects a person’s name, portrait, picture (“any recognizable likeness”) and voice from being used for advertising or trade purposes without written consent.

“In short, not getting permission from any person to use his or her image or likeness in an advertisement only opens the door for liability. The more famous a person, the bigger the liability,” says Verna. In this case, Katherine Heigl may receive compensatory damages – which she has promised to donate to charity.

What does all this mean for brands? Creative social media marketing can benefit businesses large and small, but it’s important to operate within legal parameters – especially when celebrities or public figures are involved.  Duane Reade faces a $6 million lawsuit from Katherine Heigl, and Samsung probably received a slap on the wrist from the White House. However, both brands also gained tons of publicity following their tweets (granted, much of it negative). Was it worth it?