When you're the social media manager for a brand, a celebrity being photographed with your product is probably the best and worst thing that can happen to you. It's a PR dream and an intellectual-property nightmare.
As New York pharmacy chain Duane Reade learned this week, cavalierly pushing out a celebrity photo on Twitter can have some severe repercussions. The store's tweet featuring a paparazzi photo of Katherine Heigl shopping at a Duane Reade has resulted in a lawsuit from Heigl, who's demanding $6 million in damages.
"Courts are perfectly willing to treat these kinds of tweets as advertising and promotion,"
said University of Maryland law professor James Grimmelmann. "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 in newspapers and magazines."
So how can other brands celebrate their A-list customers in social media without landing in court? We asked experts on copyright law in the digital age to share a few tips that could potentially save your company millions of dollars (or at least save you from being publicly shamed by the celebrities in whose glow you were attempting to bask).
1. Get permission (which you're probably not going to do, so skip to No. 2).
Obviously, the smartest way to go when sharing a photo you don't own is to get written permission from the copyright holder and the person in the photo. Journalism outlets, even those of the tabloid variety, can run celebrity photos under the protection of the First Amendment, but marketers usually play under a different set of rules.
"Most states recognize at least some form of a right of publicity," said Courtney Barclay, a professor at Syracuse University's Newhouse School of Public Communications. "Whenever that image, voice or likeness is used for any sort of promotional gain, be it a tweet or a traditional ad on TV, if that's done without that person's permission, they have right to damages."
Barclay, an expert in privacy and advertising law, said she would recommend any business to get permission before sharing a photo on Twitter or Facebook. While social network terms of service often allow the sharing of copyrighted photos (such as through retweeting), Barclay says that permission does not extend to commercial use.
"Get consent. If you want to put that image up, try to take social media out of the equation," Barclay said. "Whatever you would do to use that photo in a print ad, it's the same process, because at the end of the day, it's the same legal claim.
2. Retweet without commentary.
The second most conservative approach for brands who want to share a photo of a celebrity is to simply retweet or otherwise share the original with little or no change to the phrasing.
In the case of Duane Reade's Heigl tweet, if the brand felt it vital to share the paparazzi photo, it could have done so by retweeting a post from the original source, gossip hub Just Jared. Instead, the chain added a long self-congratulatory message and even hashtagged itself.
The First Amendment generally protects brands' ability to share information, experts say, but as this sharing tilts toward promotion or implied endorsement, those protections evaporate quickly.
Brands could get away with "the straight retweet without any added commentary," Barclay said, though she warns it's still far better to get permission.
3. Say you're flattered, and be transparent.
In contrast to Samsung's Ortiz-Obama selfie, which confused consumers and may even lead to a White House selfie ban, brands should be very clear about their relationship to any celebrity photo they're sharing.
"Think about how to phrase the tweet or the post in a way that makes it clear that the origin was something else, that this is a candid paparazzi shot, for example—something that makes your distance from the celebrity clear and your distance from staging the photograph clear," said James Grimmelmann, an expert in digital intellectual property who teaches at Maryland's Francis King Carey School of Law.
To Grimmelmann, this is where Duane Reade likely got itself into trouble.
"One of the problems with the Duane Reade tweet," he said, "was that the phrasing of the tweet is close to indistinguishable from what they would have written if it were an endorsement."
A safer approach, he said, would have been for the brand to act "surprised and delighted" by the photo rather than crafting a promotional-sounding note like the one Duane Reade published: "Even @KatieHeigl can't resist shopping #NYC's favorite drugstore."
"If the brand can make it clear that they're not involved with it, that they're flattered by it and that they're not going to use this as the centerpiece of a marketing campaign," Grimmelmann said, "not only will you be on the right side of the law, you're less likely to tick off the celebrity."
4. If they ask you to take it down, take it down.
According to a report today in Us Weekly, Heigl's people asked for the chain's tweet to be removed before pursuing legal action. "They called and asked for it to be taken down, and Duane Reade ignored them," an unnamed source tells the magazine. "She tried repeatedly to have this settled without a lawsuit."
As word of the lawsuit spread across news and gossip sites alike Thursday, the original tweet remained live on Duane Reade's feed, leading some to wonder if the brand was digging in its heels. As of this morning, though, the tweet had been deleted.