Imagine if actress Katherine Heigl and convenience store chain Duane Reade Inc., a subsidiary of the Walgreen Company, joined forces to create a smart, tongue-in-cheek ad campaign. I can see it now, clear as daylight: Heigl gallantly sashays out of a Duane Reade store, and in hand the 27 Dresses starlet carries legal supplies, such as notary seals and stamps, yellow legal pads, exhibit labels and 9" x 12" manila envelopes. The caption reads, "Sue or Be Sued. You Can Do It All At Duane Reade."
This type of scrupulously structured campaign would be far superior in quality and content to the unimaginative ZzzQUIL commercial the former Grey's Anatomy diva currently appears in.
The Best Supporting Actress Emmy Winner for Grey's Anatomy filed a $6 million lawsuit in Manhattan federal court against Duane Reade Inc. on April 9. The complaint alleges the company improperly used the star's name and likeness on Twitter and Facebook, without authorization, to promote their brand.
The specifics of the incident that led to the case are uncontested: Duane Reade posted an image of Heigl toting their shopping bags in New York City, along with the caption,
Love a quick #DuaneReade run? Even @KatieHeigl can't resist shopping #NYC's favorite drugstore.
-Duane Reade (@DuaneReade) March 18, 2014
Duane Reade has since removed the TwitPic from its social media site.
While the advertising concept described above is just a figment of my imagination, it makes all the sense in the world for the floundering actress and unsexy pharmacy chain to use their newfound stardom to milk this legal maelstrom for all it's worth.
Bear in mind that before the suit, there was no buzz surrounding the actress or Duane Reade, whose big claim to fame was advertising steep discounts on Tampax Pearl Tampons. True story.
It was not so long ago (think 2013) that Robyn Rihanna Fenty (stage name Rihanna) won a $5 million judgment against trendy British retailer Topshop for using her image on their T-shirts without her permission. Yet Rihanna's suit, decided by the High Court of Justice, Chancery Division, in London, does not signal lights out for Duane Reade--not by a long shot.
Duane Reade's tweet simply conveyed to its 2.2 million followers that Heigl had shopped at one of its stores, which was accurate, and there was no suggestion of an affiliation. As American writer Gertrude Stein once professed, "There is no there there." This is a challenging case for the 35-year-old to win, to say the least.
If the case goes to trial, and that is a huge, ginormous if, the federal court in New York will be forced to consider whether a company's tweets should be deemed advertising and perhaps only then will the legal system provide some guidance on how brands can constitutionally and legitimately use social media.
As an entertainment lawyer, I can empathize with Ms. Heigl's plight; image in La-La Land is everything. Oftentimes it is more important than the Big T . . . talent. It is crucial to control a personal brand, even if it means a leading lady may have to go to extraordinary lengths (like filing a frivolous lawsuit) to protect it.
Yet one could argue that the allegation of Duane Reade's misappropriation of the Life As We Know It star's celebrity is hogwash since Ms. Heigl does not have a bona fide brand to protect. After all, the animal activist fell from Hollywood grace when she called her top-grossing hit Knocked Up sexist and refused to submit herself for an Emmy nomination because the Grey's Anatomy writers did not give her any good material to work with.
Thespian Katherine Heigl made Duane Reade relevant, or was it the other way around? Ms. Heigl might want to relish the fifteen minutes of attention that was recently thrust upon her. The idea is that since she's getting coverage, it doesn't matter what's said in the tweet or how she looked wearing a modern fit trench coat just as long as she's relevant and people are talking about her. It is a sobering fact that the celebrity you do not know about will not be a celebrity for long.
Since neither party's case can fairly be characterized as a slam dunk, the striking 5' 9" beauty (Heigl) and the 250 store beast (Duane Reade) should put their egos aside and craftily capitalize on the social media melodrama stemming from Duane Reade's March 18 tweet. If you can't beat them, Ms. Heigl, join them.