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Katherine Heigl Drops Her Lawsuit Against Duane Reade

from the dropping-spree dept

Thu, Aug 28th 2014 8:40pm — Timothy Geigner

Back in April, I wrote to inform you of the crazy-pants lawsuit filed by Katherine Heigl after Duane Reade, a drug store chain, tweeted out a photo of Heigl shopping at one of its stores. Under the auspices of publicity rights and the corollary idea that celebrities are simply better people with more legal privileges than the rest of us, Heigl wanted six-million dollars for the following tweet.

At the time, we noted that despite New York publicity rights laws being among the most tyrannical, it seemed strange for a lawsuit to be filed against a company simply for showing, you know, a thing that happened. While Heigl also claimed that this was a form of advertising, it's still just the accurate representation of something that occurred, which makes the whole advertising claim sort of silly.

Well, the lawsuit has now been voluntarily dropped with prejudice, along with news that Duane Reade has reached some sort of super-secret agreement with Heigl.

Papers to dismiss the lawsuit were submitted in New York federal court on Tuesday. The dismissal comes with prejudice, meaning that Heigl can't later sue again over Duane Reade's tweet and Facebook post. No terms were revealed in court papers, but Heigl's attorney provides at least some detail.

"Katherine Heigl and Duane Reade have worked out a mutually beneficial agreement," says Peter Haviland at Ballard Spahr. "Ms. Heigl has voluntarily dismissed her lawsuit, and Duane Reade has made a contribution to benefit the Jason Debus Heigl Foundation. The parties have agreed to keep the terms of the agreement confidential."

There's no way to be sure that Duane Reade didn't drop six million off at Heigl's charity, but I doubt it. Either way, it's sort of a shame to see the company run away from challenging the insanity of the claims in the original lawsuit. Publicity rights are beginning to result in ever-more ramped-up legal cases that anyone with a modicum of common sense will recognize as silly. It was a picture of Heigl shopping at a store. Somehow that resulted in the store having to settle and contribute to a celebrity's charity of choice? Come on now.

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Filed Under: advertising, katherine heigl, publicity rights, settlement, tweets
Companies: duane reade

35 Comments

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Anonymous Anonymous Coward, 28 Aug 2014 @ 9:09pm

Entitlement
You know, looking down the list of posts today, I am struck by the article down there where one can't own facts, yet these overly entitled (some obscure belittling reference) seem to think they can control facts, when the facts are about themselves.

I am having trouble discerning the difference.

Which brings up the point, if one cannot own facts, how can publicity rights be legal? I understand that states pass laws, but the constitution still stands...well to some degree since it is still discussed rather than followed.
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willy, 28 Aug 2014 @ 9:15pm

god she looks ugly
she dont look to good there, to want 6 million
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Anonymous Coward, 28 Aug 2014 @ 9:16pm

So when the paparazzi take pictures of celebrities and sell them do the paparazzi have to pay the celebrities? I thought the paparazzi owned the copy protection privileges and the celebrities don't and so the paparazzi gets to sell it and keep the money? Or would the paparazzi have to pay the celebrity under publicity privilege laws?

So copy protection privileges for those that take the picture and publicity privileges for those that get their picture taken. Uhm .... so any time someone takes your picture you can demand publicity royalties.
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That One Guy (profile), 28 Aug 2014 @ 9:43pm

Re: Entitlement
Congratulations, you've now put more time, effort and logic into the mess that is 'publicity rights' than the idiots who proposed and passed the laws dealing with them.

A) Factual information cannot be covered by copyright, or otherwise controlled or owned by anyone.
B) Publicity rights allow a select few to own and control factual information.

If A is true, B isn't.
If B is true, A isn't.

And yet somehow those who support the idea of 'publicity rights' are unable to see the conflict.
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Whatever (profile), 28 Aug 2014 @ 11:12pm

Re: Re: Entitlement
It's really not that simple. When you look at the case, you have to remember that dozen (maybe thousands) of people have shopped there, but since they were not famous, there was no advantage for the store to put up a picture and make a post about it. It's the perfect example of attempting to gain benefit by association with someone famous (and their image).

There is no benefit for the store to post up your image saying "That One Guy shops with us", but there is plenty of potential benefit of associating their store and their brand with a famous person and their "brand" as it were.

Otherwise, big companies would make sure that every store took super hi res images of everyone who came in, and would make ads with anyone even remotely famous that came in.

The guy could have stated it as a fact "This celeb was in our store today!" and nobody would have said anything - except that maybe other celebs would stay away. As soon as you add the persons image and try to gain benefit by association, you cross the line in trying to imply endorsement.
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PaulT (profile), 29 Aug 2014 @ 1:08am

"While Heigl also claimed that this was a form of advertising, it's still just the accurate representation of something that occurred, which makes the whole advertising claim sort of silly."

Hmmm... I'd disagree here. While it's true that it's just a report of something that happened, it's clearly presented in an advertising context. They post from their official feed, hashtag their own name and the content is clearly written to say "look, Heigl shops here, why don't you!".

I disagree that it's worth $6 million, and don't question the outcome, but it's clearly a marketing attempt.
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kenichi tanaka (profile), 29 Aug 2014 @ 1:44am

This was absolutely about using Heigl to advertise their product and they tried to get away with using Heigl for free publicity and it simply did not work. In the end, Duane Reade ended up paying for it, in the end.

You cannot use a celebrity's publicity rights in order to get free advertising and shame on techdirt for claiming that you can.
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Anonymous Coward, 29 Aug 2014 @ 3:51am

Re: Re: Re: Entitlement
If you see me in a store, I am endorsing it.

If she is screwing little kids in the park, she is endorsing that, whether you were meant to see her or not.
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Ninja (profile), 29 Aug 2014 @ 4:20am

Re: Re: Re: Entitlement
It's the perfect example of attempting to gain benefit by association with someone famous (and their image).

It would be if there was an entire publicity campaign using her image everywhere instead of a tweet acknowledging she was leaving the store with bags full of products.

Otherwise, big companies would make sure that every store took super hi res images of everyone who came in, and would make ads with anyone even remotely famous that came in.

Indeed. Good thing there was no advertisement extensively using the picture but rather a quick tweet.

The guy could have stated it as a fact "This celeb was in our store today!"

Precisely what happened.

Your point?
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Ninja (profile), 29 Aug 2014 @ 4:22am

Re:
No they didn't. It was a tweeted fact and it stayed at it, there was no publicity campaign.

You cannot use a celebrity's publicity rights in order to get free advertising and shame on techdirt for claiming that you can.

Techdirt is not claiming that. Read the article, it was a single tweet acknowleding she shopped there.
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Anonymous Coward, 29 Aug 2014 @ 5:08am

Perhaps better than a lawsuit would be a simple summary of what she purchased there and why - because inquiring minds want to know.

Something like this:
The store name didn't matter, I needed some stuff and it was on the way.
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Anonymous Coward, 29 Aug 2014 @ 6:34am

Re: Re: Re: Entitlement
So I take it you hate the paparazzi?
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Anonymous Coward, 29 Aug 2014 @ 7:56am

"The parties have agreed to keep the terms of the agreement confidential."
Let's hope someone remembers to check the foundation's IRS 990-PF for 2014 extortions, er, contributions.
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burdlaw (profile), 29 Aug 2014 @ 8:44am

Re: Entitlement
Publicity rights serve to compensate celebrities for unauthorized use of their reputation for commercial purposes by freeloading opportunists like Duane Reade, Inc. It's the law, you know. If you don't like it, lobby for a change. If you have enough to spend enough the best Congress money can buy might change the law to benefit you and Duane Reade, but for now they are ripping off Heigle. You would also want to be compensated by those trying to get free endorsements from you, except that you don't have fame and fortune. Have-nots seem to always feel a sense of entitlement when they want an unearned share of what the "haves" have. Would you also feel entitled to jump and rape her because she is in the public, right? I mean, facts are facts, right - she asked for it. Or to jump her fence and use her pool because it's unfair she has one and you don't, so you should be entitled to an unearned share and just take it.
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nasch (profile), 29 Aug 2014 @ 8:47am

Re:
So when the paparazzi take pictures of celebrities and sell them do the paparazzi have to pay the celebrities?

If I understand correctly, publicity rights laws only apply to situations where the usage could be construed as a commercial endorsement.
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nasch (profile), 29 Aug 2014 @ 8:49am

Re:
I disagree that it's worth $6 million, and don't question the outcome, but it's clearly a marketing attempt.

It is, but statements of fact should never be actionable. Putting Heigl's face on a drug store billboard would be a different story, but this is clearly just publicizing something that happened. That the store was doing it to promote their commercial agenda shouldn't make it illegal IMO.
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burdlaw (profile), 29 Aug 2014 @ 8:53am

Re: Re: Entitlement
The "idiots" who proposed and passed the laws are your elected representatives. The real idiots are those who think simplistically that because it is a fact that a celeb shopped in your store, you are entitled to use their image for commercial purposes to get a free endorsement. Heck with Heigel's rights, and heck with the law your representatives passed. Just make your own laws.

You logic is flawed. Publicity rights are not copyrights, so even if A is true, B can also be true. Simplistic flawed logic does not change the facts. What Duane Reade, Inc. did is probably illegal. And, in the end, they had to pay to compensate for violating publicity rights. Right result.
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AnonyBabs, 29 Aug 2014 @ 9:00am

Now now, Tim. She obviously needs the money so she won't have to go back to the "Mother of the Bride" department at JCPenney for next year's Emmy gown.
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burdlaw (profile), 29 Aug 2014 @ 9:09am

Re: Re:
"If the facts don't fit the theory, change the facts" - Albert Einstein.

You changed the facts. The actual fact is that this was tweeted as a commercial endorsement, probably a false one, not as an observed fact. It did not say "K. Heigl seen coming out of Duane Reade store", it said "Even @KatieHeigl can't resist shopping #NYC's favorite drugstore." That is using her for an endorsement, saying she can't resist shopping there. Chances are very high she CAN resist it and will probably never shop there again. So it's not only an endorsement, it is a false and misleading statement. Right result. Duane Reade, Inc. needs to think before tweeting.
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nasch (profile), 29 Aug 2014 @ 9:27am

Re: Re: Re: Entitlement
You logic is flawed. Publicity rights are not copyrights, so even if A is true, B can also be true.

Read it again: "Factual information cannot be covered by copyright, or otherwise controlled or owned by anyone." If publicity rights permit celebrities to control the reporting of facts, then proposition A cannot be true.
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nasch (profile), 29 Aug 2014 @ 9:30am

Re: Re: Re:
It did not say "K. Heigl seen coming out of Duane Reade store", it said "Even @KatieHeigl can't resist shopping #NYC's favorite drugstore."

That would probably fall under the exemption for hyperbole, opinion, etc in advertising. For example, a commercial is free to claim "these are the best potato chips ever!" without having to worry about proving that they are, in fact, the best ever. But that would be for a court to decide.
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Anonymous Coward, 29 Aug 2014 @ 9:45am

Re: Re: Re: Re:
The legal term is 'puffery'.

http://en.wikipedia.org/wiki/Puffery
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PaulT (profile), 29 Aug 2014 @ 9:47am

Re: Re:
Oh, I don't disagree there. But, actionable or not, factual or not, it's still a piece of marketing. I was simply questioning Tim's assertion that it's silly to claim its advertising. It's not as egregious as a billboard or something bigger, but it is what it is.
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PaulT (profile), 29 Aug 2014 @ 9:47am

Re: Re:
Oh, I don't disagree there. But, actionable or not, factual or not, it's still a piece of marketing. I was simply questioning Tim's assertion that it's silly to claim its advertising. It's not as egregious as a billboard or something bigger, but it is what it is.
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DogBreath, 29 Aug 2014 @ 9:47am

Re: Re: Entitlement
Simple fix. Duane Reade, Inc lifetime bans Katherine Heigl from their stores. Next time she shows up, notify her of such and have her arrested for trespassing while notifying TMZ, so they can be there for the exclusive story and pay Duane Reade, Inc for the tip. I suspect there will be much rejoicing on that day that "the law" and "reporting of facts" were upheld over "publicity rights".

Better yet, just have Katherine Heigl move/deported to the EU so she can exercise her "right to be forgotton", so we can forget about her. Please make her take the Kardashians and any other uptight/worthless celebrities with her.
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Anonymous Coward, 29 Aug 2014 @ 3:36pm

Who wears a blanket around their neck?
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Whatever (profile), 29 Aug 2014 @ 4:38pm

Re: Re: Re: Re: Entitlement
Precisely what happened.

Read the tweet again. He didn't say she was in the story, he said "can't resist shopping" - and used the image in question. It's really easy to see that this is an attempt to imply endorsement.

What would you say if the store did this every day with a new celeb or semi-famous person? Would each one only be a statement of fact?

Remember too: Twitter is potentially the biggest billboard in the world. Would you feel any different if this was printing on a roadside billboard?
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nasch (profile), 29 Aug 2014 @ 5:26pm

Re: Re: Re: Re: Re: Entitlement
Would each one only be a statement of fact?

Of course it would be a statement of fact. I don't even know how you can question whether it would be a statement of fact. The question is whether it's appropriate to constrain someone's liberty to publicize a statement of fact.

Remember too: Twitter is potentially the biggest billboard in the world. Would you feel any different if this was printing on a roadside billboard?

Maybe I'm drawing a distinction without a difference, but to me it seems to me the differences are:
- The sole purpose of a billboard is advertising (not even close to true of Twitter)
- It would be generally assumed that someone's image on a billboard is with the consent of the individual and is an endorsement. I don't think that's true of Twitter. I certainly would not see that tweet and think that Heigl had anything to do with it.
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Mike Masnick (profile), 29 Aug 2014 @ 5:51pm

Re: Re: Entitlement
Publicity rights serve to compensate celebrities for unauthorized use of their reputation for commercial purposes by freeloading opportunists like Duane Reade, Inc.

Reposting factual information is not "freeloading."

It's the law, you know. If you don't like it, lobby for a change.

Uh, one way you do that is to highlight ridiculous outcomes and litigation like this. People who say "shut up, it's the law" generally are revealing that they're unable to actually stand up for the reasons behind the law, so they resort to "it's the law, shut up or change it" not realizing that the WAY you change it is by highlighting the ridiculousness. Like this case.

If you have enough to spend enough the best Congress money can buy might change the law to benefit you and Duane Reade, but for now they are ripping off Heigle.

1. Again, one way you change it is by highlighting ridiculous results like this one.
2. Congress has nothing to do with it, since this is a state law we're dealing with (you're a lawyer? really?)
3. How is it "ripping off" someone to post factual information about them?

Would you also feel entitled to jump and rape her because she is in the public, right?

Holy shit you've lost the plot. Get help.

I mean, facts are facts, right - she asked for it.

You're honestly comparing taking a photo of someone shopping some place to raping her? Are you mad?
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PaulT (profile), 30 Aug 2014 @ 6:08am

Re: Re: Re: Re: Re: Re: Entitlement
"The sole purpose of a billboard is advertising (not even close to true of Twitter)"

But, this is the company's official Twitter account, used for advertising and marketing purposes.

As I've been saying above, I doubt that any endorsement is implied and the whole fight is a little silly. But, let's stop pretending this isn't a form of marketing. It clearly is.
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Anonymous Coward, 31 Aug 2014 @ 6:47am

Re: Re: Re: Entitlement
"Are you mad?"

... and he is not alone in that condition.
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Anonymous Coward, 31 Aug 2014 @ 11:10pm

Re:
I think TD's objection is more to the concept of publicity rights in general than to the decision that this was in fact against NY's laws.
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Ninja (profile), 1 Sep 2014 @ 7:08am

Re: Re: Re: Re: Re: Entitlement
It's really easy to see that this is an attempt to imply endorsement.

Really? I disagree. Endorsements need the person to say his/herself that she 'only buys at X'. The fact that I sometimes buy at Walmart doesn't mean I like it above all else or endorse all its policies (although I will avoid buying there if there's a strong motive - ie: I'm avoiding some clothing brands due to use of slave work).

What would you say if the store did this every day with a new celeb or semi-famous person? Would each one only be a statement of fact?

That's one tweet of one event. If it's an everyday thing then I would have a problem indeed. But if they tweeted frequently about different celebrities shopping at their stores then it's not a problem. You are not even remotely showing that all those celebrities endorse you but rather that the place is sought by the famous as a whole.

Remember too: Twitter is potentially the biggest billboard in the world. Would you feel any different if this was printing on a roadside billboard?

Oh but I agree that this is all about marketing. A lot of places I've been to have pictures of celebrities that visited them displayed all over the wall and anyone can see it. Just because the wall is now online it doesn't mean it's any different. The difference is that if I see the celebrity in the billboards first they will use much better pictures and second I will assume it is an endorsement while the tweet only acknowledge she shopped there, nothing more. Could she be in a rush and the store was the closest to her at the time? Yes. Could it be that she actually likes the store? Yes. There are a lot of coulds but what's certain is that this cannot be read as an endorsement. Marketing? Yes. Endorsement from the celebrity? Not as it is.
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nasch (profile), 1 Sep 2014 @ 2:50pm

Re: Re: Re: Re: Re: Re: Re: Entitlement
But, let's stop pretending this isn't a form of marketing. It clearly is.

I didn't say it isn't, I said Twitter is not exclusively used for advertising.
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PaulT (profile), 2 Sep 2014 @ 2:05am

Re: Re: Re: Re: Re: Re: Re: Re: Entitlement
"I said Twitter is not exclusively used for advertising."

I apologise if I misread your comment. But, the problem with such physical analogies is that the use of such a service depends solely on the user. Yes, a billboard is used exclusively for advertising. No, Twitter overall might not be used for advertising, but many companies set up accounts whose sole purpose is to advertise themselves. In the case of those accounts, the purpose of Twitter is marketing, even if that's not the purpose for other users.

That's really my point. It's clear in my mind that the purpose of Twitter *for this tweet* was to advertise the company. I don't agree with the conclusions that Heigl and others thought that this should lead to, and I think the court reached the correct decision. But, I struggle to see how this can be seen as anything but marketing, even if we agree that the tweet was based on a fact with no implication that Heigl endorsed the ad.
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