A case filed on April 9, 2014 in New York Federal District Court highlights the tension between celebrity endorsements and ordinary First Amendment communications in the digital age. The actress Katherine Heigl, who starred in various middlingly-successful motion pictures, has sued the drugstore chain Duane Reade Inc. for $6 million in damages for tweeting a paparazzi photo of her leaving one of its stores holding Duane Reade shopping bags, with Twitter the tag line: “Love a quick #Duane Reade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.”

In her complaint, which alleges deceptive advertising in violation of the federal Lanham Act as well as a New York civil rights statute protecting the use of a person’s likeness, the actress argues that Duane Reade has tried to trick consumers into believing that she has made an endorsement of the company’s brand. The complaint further argues that the image and text has stripped the “story” of any viable news content. To that end, Heigl’s legal team argues that Duane Reade is attempting to obtain what essentially amounts to free advertising at Miss Heigl’s expense – without paying her – by turning her random shopping excursion into an advertisement.

The case raises a number of interesting questions for the advertising industry. It is well-known that the industry has moved to adapt itself quickly to the digital age. For many years now, advertisers and their agencies have moved well past print, radio and video images to which they were formerly limited. For example, it is now common practice for advertisers to run lifestyle blogs that cover topics of general interest but often focus on the latest company news or brand releases cleverly embedded within ordinary content to make it look informal or even off-the-cuff. It is the age of the non-advertisement advertisement. In many cases, readers don’t even know that an entire blog may be a paid “product” that exists solely to advertise a particular brand or item. Often, the blog, twitter feed, or other digital medium is not even connected to the company’s primary “.com” website.
Continue Reading Tweet, Tweet, Sue, Sue: Corporate Twitter Feeds and The Lanham Act