The $6 Million (US) Dollar Tweet?

One of the best methods for getting your brand message across to thousands of people at very little expense is to utilise social media and engage a celebrity with a post, particularly on Twitter, in the hope that they share it with their many thousands or millions of followers.

Perhaps this is what the Duane Reade publicity team were hoping to achieve when they posted an image that showed Katherine Heigl emerging from its New York store recently. The pharmacy’s tweet (see image) was seemingly innocent enough and received a modest (if not paltry) number of retweets and favourites – none of which were sadly by Heigl. Instead, what they got was a lawsuit for $6 million in damages (roughly half of what she earns per film – not bad work for the couple of minutes the post would have taken to write, although it should be noted she has pledged any and all funds to her charity).

Image source: supplied

Over the last few years social media has opened the door for brands to engage with celebrities like never before with free and paid for opportunities. But this has blurred the lines of what is acceptable, and the Heigl case reflects how unsolicited engagement can leave brands susceptible to legal action.

The crux of the issue is this – does the tweet construe advertising? Has it been worded in such a way that it implies that Katherine Heigl is endorsing Duane Reade pharmacy? Well, that’s what Heigl’s lawyers are arguing.

In documents released by the New York Post, it states that the suit is being brought against the pharmacy for the use of the unsolicited image and promotional caption on its Twitter and Facebook accounts, in an act that is defined as for its own ‘commercial advertising’ without Heigl’s knowledge or approval. The suit also infers that the posts were ‘aimed at attracting customers and revenue, especially social media savvy customers’.   

The image itself came from the paparazzi site Just Jared. But how Duane Reade came across it is a mystery, as the image has not been used widely by the site and only appears when explicitly searching for the star on the site. Also, it brings into question if the unsolicited picture was used in a newspaper or on a TV broadcast, is that not then also promoting that paper, magazine or TV brand? Is Duane Read’s crime that they used it on social media with wording that is ambiguous? In fact, do they even have permission to use the image? The tweet didn’t seem to credit Just Jared – awkward.

Whatever your contention, Maryland Professor of Law, James Grimmelman, affirms that grounds of the suit will be considered by the US legal system. When speaking with AdWeek last week he said: “Courts are perfectly willing to treat these kind of tweets as advertising and promotion. That means that despite the spontaneity of what comes up in social media, brands need to be thinking about it with the foresight that they use with advertising and in magazines.”

The question now then is ‘what is acceptable?’ If a celebrity posts an image to their social media channels enjoying a drink, with some new sunglasses or at a particular bar etc that they post themselves, what happens when that brand engages with the post referencing said star enjoying their product?  Is that grounds for a lawsuit or is the issue the wording in the Heigl matter or the fact that it’s an attempt by the pharmacy to spark a conversation? 

Whilst this is an American case, it has worldwide implications. For years, I have worked with brands on their social media trying to educate them as to the differences of using social media personally and professionally. For me, this seems to be where the lines have blurred. There have been numerous instances where the different brands that I’ve worked with have utilised a celebrity post and what this case demonstrates is the lack of clear guidance as to what’s acceptable.

In essence, this could be a definitive turning point in the use of social media by brands in relation to what pertains to advertising and promotion. At the very least, it is a warning about what is and is not acceptable in relation to celebrity posting.

However, allow me to play devil’s advocate if I may and refer to an old adage that may go some way to easing the woes of Duane Reade and that’s ‘There’s no such thing as bad publicity.’ Whilst the case may be ongoing and a possible settlement reached before its conclusion, Duane Reade has received coverage that conservatively is worth a couple of million dollars at least and has made the pharmacy infamous in the last week.

Unlikely supporters of the brand have also emerged from the woodwork, including Piers Morgan who tweeted to his 4 million followers “Hi @DuaneRead – unlike @KatieHeigl , I am very happy to be photographed coming out of your excellent stores. And feel free to tweet it.” (Although the jury is still out if this will entice more patrons or drive them away for fear of running into Piers Morgan).

Whatever the outcome, the pharmacy chain will undoubtedly benefit from the massive amount of publicity the case has received and will continue to receive over the next few weeks. But one thing’s for sure, next time I’m in America and need to visit a pharmacy, I’ll be looking for a Duane Reade (I’ll even let them tweet it… for a small price).

Lee Hall, InsideOut PR