Curtis J. Jackson III, aka “50 Cent,” has prevailed in a major ruling in his lawsuit against a medical spa that used his image to advertise a penile enhancement business. Angela Kogan, the owner of Perfection Plastic Surgery & MedSpa, will now have to go to trial to defend the use of the images on social media in an interesting case on the “right to publicity” in torts.
Jackson’s complaint begins by declaring “This case is about the abuse of a popular entertainer and businessman’s act of goodwill by an unscrupulous business owner for her own economic gain.”
While visiting Sunny Isles Beach on February 1, 2020, Jackson was approached by Kogan for a selfie. Jackson maintains that he believed that Kogan “simply wanted a photograph with [him] exclusively for her own private enjoyment.” However, the selfie was taken in front of her Perfection Plastic Surgery & MedSpa and Kogan later posted the photo on both her public Instagram account and Perfection’s public account with a caption reading, “Thank you @50cent for stopping by the number one med spa.” The posts includes such hashtags as “#50cent #bhperfectionmedspa #perfectionmedspa #medspa #celeb #vip #facial #laser.”
Kogan continued to allegedly post the photo and Kogan’s publicist allegedly pitched the story to a gossip site, The Shade Room, for an article titled “Penis Enhancements Are More Popular Than Ever & BBLs Are Dying Out: Cosmetic Surgery CEO Angela Kogan Speaks On It.”
Kogan then reposted the article, but this time she included the Jackson picture side-by-side with a “close-up shot of a medical provider presumably performing a penile enhancement procedure on a patient whose face is not visible and whose genitals are obscured by an eggplant emoji.”
In a video featuring her picture with Jackson, Kogan claims that “[m]en have really stepped up and are getting more surgery than we think.” While the picture uses a vegetable emoji to obscure the surgical image, the implication was that 50 Cent has had his own “eggplant” enhanced.
That led to the lawsuit alleging a variety of statutory and common law claims.
Judge Robert N. Scola rejected Kogan’s subsequent motion to dismiss in a ruling that noted that Kogan was making the “weak” claim that Jackson consented to the use of the photo as publicity.
Florida codified the common law tort for misappropriation of name or likeness. Under Fla. Stat. § 540.08(1), Florida law states:
“No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use . . .”
The Court found that “both the Tweet and the article, which appear in the video posted by the Defendants, indisputably place Kogan’s photo with Jackson next to images and text that promote penile enhancement surgery and the Defendants’ business.”
Jackson also sought recovery under not just the common law misappropriation tort but the tort of false light in the second count. Under a false light claim, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications. The court also found for Jackson on the common law count.
Jackson also prevailed on counts under the Latham Act for false endorsement (Count III) and false advertising (Count IV), conversion (Count V), and unjust enrichment (Count VI).
The court is clearly correct in allowing the case to go to trial, particularly given the standard that all facts are to be construed in favor of the non-moving party. Frankly, this is a case that the Kogan should have settled immediately under advice of counsel. The court notes that Kogan actually did little to refute these claims or offer evidence on how (or an explanation why) Jackson consented to such publicity use.
Now, given the costs of the litigation, Jackson is likely to demand a tad more than 50 cents. He is seeking not just attorney’s fee and costs under the Latham Act but treble damages under that law.