A celebrity like Katherine Heigl is spotted in a photo wearing a product, or shopping at a store, or reading a book.
The owner of that product, book, store, or whatever the entity gets so excited, spazzes out, feels as though they have "arrived", and want to share the celebrity validation with the world. Like Duane Reade did when they tweeted a twitpic photo of Katherine Heigl exiting a Duane Reade store with shopping bags in hand. Which read something like this:
The business owner takes to social media like Twitter, Facebook and Instagram, and blogs about it on their website and adds the photo to their press page. To have a celebrity endorse something is the mecca for many business owners.
STOP RIGHT THERE!
And therein lies the problem. Endorsement. All of this validation means that a celebrity approves of something for sale, and that validation can boost the profits of a business when suddenly everyone wants to be just like that celebrity and buy the product. When a photo is used for advertising or trade purposes, and there is no written consent, there could be a very big, expensive problem, says NYC attorney Anthony Verna, who specializes in intellectual property and trademark law.
"Not getting permission from any person to use his or her image or likeness in an advertisement only opens the door for liability," Verna said. "The more famous a person, the bigger the liability." In fact, Verna was a guest expert in a Tin Shingle TuneUp to bring awareness to our small business members about when it's safe to use a photo when promoting your business, and when permission is a must. According to gossip rags, Heigl's attorney's reached out to Duane Reade to have the tweet removed, but the request was ignored. So a lawsuit is just around the corner.
Verna points out that the law in New York protects a person's name, portrait, picture and voice, as part of its "Right of Privacy" statute, at Article 5 of the N.Y. Civil Rights Law. And, Verna warns, "courts have construed the portrait/picture provisions of the statute somewhat broadly, to include 'any recognizable likeness, not just an actual photography.'" This could include a sculpture, mannequin, and other three-dimensional "likenesses" may be covered. (Legal Eagle citation: Young v. Greneker Studios, 26 N.Y.Ys. 2d 357 (N.Y. Sup. Ct. 1941)
The celebrity's bank account doesn't matter either. In fact, that could make it worse. A celebrity makes money off of photos and other likenesses. Even if they haven't made a movie in years, their picture can still earn them an income. Society likes to slam celebrities, but they have bills to pay too, and what's different about them than a normal business is, a celebrity pays salaries to those who clean their houses and manage their careers. It costs a lot of money to be a celebrity! So a celebrity may fight to control their image and demand payment. Not all celebrities may be like this, as some may appreciate the added publicity they will get from being spotted using or wearing a #smallbiz product. Some may enjoy supporting small businesses, and may give permission frequently to use a photo. But celebrities like Katherine Heigl, who have a reputation for A. being high and mighty on ethics, and/or B. needing to bank it to increase their income, may not be celebrities you skip getting permission from.
NOT ALL TWEETS ARE INNOCENT
Creating a tweet is very easy. Putting two and two together is how digital marketers and publicists make their money. So when content marketing companies like this one put out headlines like this: "It all started with an innocent tweet", it further blurs the lines of right and wrong, especially when small businesses look to larger businesses with in-house legal teams to set the model of what is standard, assuming that if their lawyers thought it ok, then it must be so.
Plus, everyone knows that celebrities get paid big bucks to tweet. For all we know, Duane Reade knew this would happen, and is enjoying a lot of publicity when big media is covering it. And they are - Forbes, Washington Post, TheWire.com, Gawker, New York Daily News, TMZ, The Wall Street Journal, Time, and many others. And it's Katherine who is getting slammed, and mega corporation Duane Reade who is being positioned as "innocent".
MORAL OF THE STORY
Hey. Maybe a social media person made that mistake at Duane Reade and didn't clear it with Legal first. Or maybe Duane Reade just paid for a $6 million dollar ad campaign. But people have rights, and this country has laws to protect those rights. When you make your money from your persona, you're going to protect it and you will decide who will pay you to endorse their product.
So take warning small businesses: ask permission first. If you get no response, and you still want to post a picture of a celebrity using your business, run it past your lawyer first.