When Silence is Not Golden

By Russell Hickey

According to a lawsuit filed this month by a Los Angeles boutique, your mother was wrong when she told you that if you didn't have something nice to say you should say nothing at all.

On September 7, attorneys for Kitson filed a lawsuit against the publisher of Us Weekly.  On the surface, the lawsuit is essentially a breach of contract claim.  In settling prior litigation, the publishers of Us Weekly had agreed not to "make any statement or communication" with the intention of "disparaging or otherwise impugning the business or management" of Kitson, damaging the personal or business reputation of Kitson or its management, or "interfering with, impairing or disrupting the normal business operations" of Kitson.  In its lawsuit, Kitson is claiming that agreement has been breached by a lack of ordinary coverage of the store.

Last week, David Hauslaib of the blog Jossip discussed this case on NPR.  According to Hauslaib, the mere presence of stores and products in the Us Weekly photos is as valuable -- if not more valuable -- than traditional advertisement.  The value of appearing in those photographs stems from the consumer reaction to seeing celebrities at certain stores or wearing certain brands.

According to the lawsuit, Kitson claims one picture was "cropped to ensure that the blue Kitson bag which is generally known to readers of the magazine did not display the name Kitson on it."  Moreover, Kitson claims photographs of Evangeline Lily and Maria Shriver did not mention Kitson despite the fact that Lily was photographed inside the story and Shriver was photographed while leaving the store.  According to the lawsuit, Kitson claims the lack of coverage resulted in more than $10,000 a week in lost revenue.

NPR described Kitson's allegations as "product displacement."  Newsday columnist Ellis Henican described Kitson as a "reverse stalker."  Regardless of the label, it is a disturbing evidence of the convergence of advertising and editorial content -- at least in the eyes of those being covered in the media.

Russell Hickey is a Claims Counsel at Media/Professional Insurance.