Katherine Heigl lawsuit a wakeup call

The nuances of social media are virtually endless. So-o-o-o-o many questions… What to post? When to post? How frequently to post? How much, or little to write in a post? Does including an image in the post promote sharing, or distract from the message? These are among the great and unresolved questions of the social universe. There are, of course, answers for each. In fact, there are oodles of answers. Data can be interpreted in so many ways that universal opinions around best practice can be difficult to pin down – whether you are talking about Facebook, Twitter, Pinterest or LinkedIn. The one certainty: There is no certainty. At least not one that is unanimously accepted. Every platform is different, every brand is different, and every brand’s platform-specific audience is different. The lush debate around these and other topics ensure that social media is alive and well, amidst the constant change of algorithms and platform updates. However, I’m pretty sure that if you asked a room full of social ninjas whether it would be within legal boundaries to share a photograph within a platform by commenting on it – thus seemingly adhering to the recommendations associated with fair use by using that image as a foundation for a discussion – that it wouldn’t result in a lawsuit. So much for that theory. Katherine Heigl, known by some for her film and TV roles, sued Duane Reade drug stores (a subsidiary of the Walgreens empire) last week after it re-tweeted and commented beneath a photograph of the actress exiting one of its drug stores in New York with bags of product in her hands. Heigl’s suit seeks $6 million in damages, for what might best be simplified as associating the Duane Reade brand with her image in a form of promotion without her permission. Yes, $6 million. The photograph in question was taken and posted last month on Twitter by an independent photographer that specializes in celebrity images, and then re-tweeted shortly thereafter by @duanereade with a caption that stated: “Love a quick #DuaneReade run? Even @KatieHeigl can't resist shopping #NYC's favorite drugstore.” It is her legal team’s perspective that she didn’t have an implied relationship with Duane Reade. Her filing, as a means of summarizing it without getting too deep in the legal weeds, charges that the pharmacy retailer’s use of the image and comment implied that there was some consent to use her image and/or her validation of the brand as a marketing piece. It’s fairly clear that Heigl wasn’t happy with the implication, and Duane Reade hasn’t suggested that it has a contractual relationship with the actress. Suing is her prerogative. The only brand having a rougher time than Duane Reade on Twitter is US Airways (@usairways), which on Monday mistakenly replied to a Twitter post that contained a pornographic image and inadvertently retransmitted it to all of the brand’s followers. Yikes. Maybe we all need a day off the grid. With regard to the Heigl case, information regarding the use of intellectual property floats around on the Internet in virtually endless supply. Of course, the problem with that is that they are floating around on the Internet, and knowing which to trust is, well, a matter of trust. And even if you feel as if you have a tight grasp on what is and what isn’t within bounds, that is no guarantee that you are protected from a suit such as the one that Heigl’s lawyers filed. Without question, if your work responsibilities stretch into social media, knowing what you should and should not post to ensure that you steer clear of a lawsuit seems more challenging in the wake of this case than ever before. The most conservative approach to re-tweeting an online image that is not the property of the tweeter is to not tweet it, obviously. A simple rule of thumb with any and all content is to not use any image that is not yours in any way that might suggest that it is your property. It’s pretty basic thinking that comes in handy, and helps rein in the generation of Internet users that view the endless expanse of content that floats around out there as a veritable smorgasbord of tempting morsels that is free for the taking. That aside, what Duane Reade’s social team did probably has been done countless times before by brands and their teams without a lawsuit resulting from it. But if Duane Reade had taken the photo themselves, it’d still likely be facing this suit. Ownership of the image, one of the bigger issues that social media folks deal with on a daily basis, isn’t in question here. No, this is about what a brand can do in conjunction with a shareable piece of content and for this there is no clear answer. Somebody always has to serve as the test case. With all apologies to Duane Reade, here’s hoping that this matter wends its way through the legal system to a conclusion. It will be fascinating to see how this ultimately is resolved.

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As always, stay classy. Chris Krug is president of the progressive media communications firm No Limit Agency* in Chicago. No Limit is a full-service agency whose practice focuses on strategy, brand management, creative campaigns and delivering unparalleled placement in the media. No Limit Agency works with some of the best-known brands in North America, and that’s not a coincidence. Contact Krug by calling 312-526-3996 or via email at [email protected].