Take a cue from the Katherine Heigl, Duane Reade lawsuit and make sure your social media team knows its legal boundaries.
Duane Reade might have sent the most expensive tweet in Twitter history. The New York City drug store chain is being sued by actress Katherine Heigl after they posted a picture in March of her coming out of their store, saying "Love a quick #DuaneReade run? Even @KatieHeigl can't resist shopping #NYC's favorite drugstore http://bit.ly/1gLHctI."
The tweet seems fairly innocent — a light hearted mix of celebrity and self promotion — but Heigl is suing Duane Reade for not so light hearted sum of $6 million.
The problem started when Duane Reade found said picture of Heigl on celebrity gossip site Just Jared and posted it to its Twitter and Facebook accounts. Heigl asked the picture be removed. Duane Reade declined. Heigl sued. The complaint says Duane Reade "misused and misappropriated the photograph for its own commercial advertising, distributing the photo with Duane Reade's own promotional slogans on its Twitter and Facebook accounts, all without Ms. Heigl's knowledge or approval."
It specifically names violations of the Lanham Act (which prohibits things like trademark infringement and false advertising), Heigl's right to privacy and publicity (using name, image, or other likeness for commercial purposes) under New York State law, and unfair competition.
"I think this is a highly important case because it goes to show that there can be consequences if you're not careful in how you use social media, especially when it's to promote your business or your client or your products," said Pedram Tabibi, a business litigation and social media attorney in New York, as well as an adjunct professor of social media law at St. John's University School of Law.
What this means for social media professionals who are either sloppy or uninformed when it comes to using images they don't legally have the right to use, is that now for the first time, legal action is on the table.
In a regard, it's always been on the table. In one of the more famous right to publicity cases, Bette Midler sued the Ford Motor Company in 1988 for using a sound-alike on one of their commercials. She won $400,000.
"Legal concerns that used to be the domain of only film photographers and print editors now must be part of the training for every company's social media manager," said Keva Silversmith, account director at the Max Borges Agency. "The precedent is really that every social brand manager needs to be trained like a journalist, particularly the legal pitfalls - defamation, privacy issues, and the laws around copyright and advertising."
Social media might just be the next plane where these laws are applied.
"I think just the fact that it was filed is really an eye-opening moment in terms of social media and advertising because it's certainly unlikely that this is the first time this has happened," he said.
So, how does a company avoid a trip to court? For one, thinking that you're on safe ground because "everyone does it" won't stop you from getting in trouble for violating someone else's rights.
Tabibi said it's wise to consult legal, or a knowledgeable person within the company when crafting a social media policy, or posting something that you're not sure about. It's also smart for a company to make sure its social media team knows how to spot potential legal pitfalls, and know when they should be bringing in another opinion.
"Many people, be it students or professionals, twitch when they hear the word "legal" and assume it's going to be a giant wet blanket on their creativity," said Dan Farkas, an instructor of strategic communication at Ohio University. "I've spoken with many lawyers view PR as rogue silo."
Open communication can prevent problems, especially in the early stages of planning strategy. "I suspect a social media team can sit around a table for an hour and come up with 20, 30 or 100 different likely scenarios. If those scenarios are vetted with the lawyer prior to the launch, everyone can agree on an action plan," Farkas said.
It's also worth knowing state-specific laws. Tabibi pointed out that in this case, at least with with regard to New York, the privacy rights that were implicated in the complaint (New York Civil Rights Law 50 and 51) are not limited to celebrities.
"If you're using the name or picture of a non celebrity without their written consent for commercial purposes, that could also be an issue," he said.
He also sees the possibility for more of these claims to surface in the future given the growth of social media in marketing and advertising. "When you have a picture of somebody using your product, that seems really authentic," he said. "It would otherwise be a nice way to promote your product." That doesn't change the fact a company has to get permission.
There's been no action on the complaint since a motion was filed to admit an attorney from a different state.
Still, Tabibi said companies should be looking at this case as a wakeup call.