Author Topic: Private Photo in promotional materials (Read 4325 times)

Uncle Pete · « **on:** April 10, 2014, 08:23 »

Since this is as close to a legal section as anyplace else. Interesting. Photographed on a public street, leaving a pharmacy. I haven't found the "promotional materials" in questions.

"The Associated Press, Wednesday, April 9, 2014, 4:20pm (PDT)

NEW YORK (AP) -- Emmy-award winning actress Katherine Heigl has sued Duane Reade Inc., saying the company is using a picture of her leaving one of its pharmacies in its promotional materials.

The 35-year-old who acted in the television series "Grey's Anatomy" and in movies including "Knocked Up" and "27 Dresses" is seeking at least $6 million in damages. The lawsuit was filed Wednesday in federal court in Manhattan.

A Duane Reade spokesman did not immediately return a message seeking comment.

The lawsuit says Heigl was recently photographed by paparazzi in New York City as she left a Duane Reade pharmacy. It says the company is exploiting the actress' image for commercial gain despite her objection."

Ron · « **Reply #1 on:** April 10, 2014, 08:44 »

Well, it needs a model release and they obviously dont have one. Pay up, case closed.

BaldricksTrousers · « **Reply #2 on:** April 10, 2014, 08:44 »

Sounds like a watertight case to me, assuming her lawyer can produce the literature concerned and prove it is her in it.

EmberMike · « **Reply #3 on:** April 10, 2014, 10:06 »

The photo was posted on twitter and facebook. Wonder if it's a sort of legal gray area since it wasn't put in an ad layout or anything like that.

Here's the offending post: https://twitter.com/DuaneReade/status/446025035312947200/photo/1

Edited to add: It sounds like DR paid to have the tweet promoted, which is sort of the equivalent of buying an ad placement. So yeah, this does appear to be a case of using a non-released image in advertising.

Pixart · « **Reply #4 on:** April 10, 2014, 10:38 »

There was one recently where a law firm used a photo of Judge Judy in their ad. OMG, how did they pass the bar? It was the first time Judge Judy sued anyone. I think it's still in court, but pretty sure we know who will win. (For non-North Americans Judge Judy is an American TV judge).

MarcvsTvllivs · « **Reply #5 on:** April 10, 2014, 12:43 »

Quote from: Pixart on April 10, 2014, 10:38

There was one recently where a law firm used a photo of Judge Judy in their ad. OMG, how did they pass the bar? It was the first time Judge Judy sued anyone. I think it's still in court, but pretty sure we know who will win. (For non-North Americans Judge Judy is an American TV judge).

That really was a hilarious case, but quite different from this one. A photo of a famous person leaving a Duane Reade could well be considered "editorial" reporting of facts, even if the reporting party is Duane Reade itself. It's a lot like making the statement "she shops at Duane Reade!". If it is ruled to have just been factual and in no way misleading or seeming as an endorsement, they may stand a chance.

That being said: it will settle.

EmberMike · « **Reply #6 on:** April 10, 2014, 15:01 »

Quote from: MarcvsTvllivs on April 10, 2014, 12:43

...If it is ruled to have just been factual and in no way misleading or seeming as an endorsement, they may stand a chance...

I think the fact that they paid twitter to promote the tweet, which in itself is a paid advertisement, will screw them in this case. Maybe the photo itself is editorial in nature, but it doesn't matter what kind of photo it is when a company pays to have it appear in a certain way for promotional purposes.

MarcvsTvllivs · « **Reply #7 on:** April 10, 2014, 16:44 »

Quote from: EmberMike on April 10, 2014, 15:01

Quote from: MarcvsTvllivs on April 10, 2014, 12:43
...If it is ruled to have just been factual and in no way misleading or seeming as an endorsement, they may stand a chance...

I think the fact that they paid twitter to promote the tweet, which in itself is a paid advertisement, will screw them in this case. Maybe the photo itself is editorial in nature, but it doesn't matter what kind of photo it is when a company pays to have it appear in a certain way for promotional purposes.

What if the Washington Post would pay a newsagent to place their newspaper above others, would that change the character of their front page image? I don't think so. The image itself and the wording surrounding it sure matter. Whether they paid someone to improve reach... I don't really think so.

Ron · « **Reply #8 on:** April 11, 2014, 01:18 »

Quote from: MarcvsTvllivs on April 10, 2014, 16:44

Quote from: EmberMike on April 10, 2014, 15:01
Quote from: MarcvsTvllivs on April 10, 2014, 12:43
...If it is ruled to have just been factual and in no way misleading or seeming as an endorsement, they may stand a chance...

I think the fact that they paid twitter to promote the tweet, which in itself is a paid advertisement, will screw them in this case. Maybe the photo itself is editorial in nature, but it doesn't matter what kind of photo it is when a company pays to have it appear in a certain way for promotional purposes.

What if the Washington Post would pay a newsagent to place their newspaper above others, would that change the character of their front page image? I don't think so. The image itself and the wording surrounding it sure matter. Whether they paid someone to improve reach... I don't really think so.

Thats different, that image has nothing to do with promoting washington post. Also the washington post front page is not an ad. In this case the image is used to promote the store. And the tweet is an ad.

Uncle Pete · « **Reply #9 on:** April 15, 2014, 09:44 »

Interesting argument, we'll see what the lawyers cook up, if it goes to court.

What if these social media sites have people paid to promote conversation with "trending" stories? What if they have Bots that read the news and post, to build conversations. Isn't that the same thing?

I really don't agree with the store doing this, but if they did post it to social media and not a published ad, then had an employee boost the views or interest. (or post it in the first place) I'm not so sure that makes it commercial?

Does that mean that any business can't post press releases or news of their recent contracts or finances? "Person X was seen shopping at Business Y." Posted by the company, openly or by an employee.

Might be an interesting argument for freedom of speech, news. But I'd argue on the side of the famous individuals protection of personal likeness. For them it's a basis of their wealth and income.

Quote from: MarcvsTvllivs on April 10, 2014, 16:44

What if the Washington Post would pay a newsagent to place their newspaper above others, would that change the character of their front page image? I don't think so. The image itself and the wording surrounding it sure matter. Whether they paid someone to improve reach... I don't really think so.

Ron · « **Reply #10 on:** April 15, 2014, 10:22 »

A company using a picture to promote their business is commercial use, no matter where its used, imo.

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Author Topic: Private Photo in promotional materials (Read 4325 times)

Uncle Pete

Ron

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EmberMike

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