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.
Hippa violation ?
Is not the spa owner conducting a false and fraudulent business? I mean, is “enhancement” really a thing? Is “enhancement” a sufficiently nebulous and noncommittal term? The industry offers “implants.” Has there ever been a comprehensive survey of the efficacy of “enhancement” outcomes, no pun intended. She may have bitten off more than she can chew, figuratively speaking.
I don’t know who is getting the best publicity here, but the long and schlort of it is they are both winning!
“While visiting Sunny Isles Beach on February 1, 2020, Jackson was approached by Kogan for a selfie.” This is a bit confusing since the selfie appears to be in her office. But the false light claim means he is alleging he was not a client of hers business, right? So why was he in her office?
Her office is in an office building with a bunch of other tenants (a dentist, a barbershop, etc.). Maybe he was visiting one of the other offices in the building and she asked him to take a picture.
Public figure, right? His family, too. The origin, intent, and scope of speech matters.
The public figure question is relevant to defamation, not right of publicity. Public figure status means that, to prevail, the plaintiff has to show the defendant knew the statement or implication was false, or acted with reckless disregard of its truth or falsity. The defendant in this case clearly knew her implication was false so even under that standard 50 cent would probably win.
I missed the part regarding the Defendant’s lawyers’ advice to settle. Is that a fact or supposition? It would certainly be the most logical advice, especially since the Courts are universally finding for Fiddy.
The publicity brought to the Plaintiff is not going to cover legal fees and the tort award, and might actually hurt her business.
Maybe the younger generations of men would be happy to have their penis enhancement surgery announced on Twitter without notice or consent, but isn’t there some sort of confidentiality implied between medical service providers and their patients?
Dear Prof Turley,
If I opened a ‘penis enhancement’ store and used the logo “Res ipsa loquitur” would you sue me? Asking for a friend.
*p.s. I’ve added the ‘tort of false light’ to my growing list of torts.
No, he wouldn’t. If you’re not a troll, you should be made aware that your comment makes you look like one,
I knew that, Brendan. If you are not completely devoid of humour, you should know your comment sure makes you appear that way. Lighten up, dood. .. the thing itself speaks.
*I do think there seems to be a fine ‘legal’ line between the use of public information and the promotion of private enterprise?
dgsnowden – the tort of “right of publicity” protects a person’s name and likeness, not phrases they use as a trademark or service mark, which are separately protected by statute (at the federal level, the Lanham Act), where the standard is likeliness of confusion. So the question is whether the ordinary consumer would be confused into thinking your business was part of the same company as (or endorsed by), this blog.
@ oldmanfromkansas
Thx. There seems to be a tort for everything.
I think I’ve got it:
1. I’m confident Prof Turley does not consider ‘Res ipsa loquitur’ a proprietary slogan unique to this blog and would have no objections to my penis enhancement store using the phrase as well.
2. I’m confident if I posted a picture of Prof Turley & his Res ipsa loquitur blog on a sign above my penis enhancement store it might be a different story.
*imo, if the owner of the penis enhancement store in Florida had merely posted the selfie with 50cents in a less ‘false light’ she, too, might have had more of a leg to stand on.
“Frankly, this is a case that the Kogan should have settled immediately under advice of counsel.”
From a purely legal standpoint, yes. On the other hand, scads more people know about her business now than they did before.
I’m a lawyer. Not funny.
The false light claim is self-evident, because if 50 Cent had had penile enhancement, he’d be noticeably taller. (an old gag, but still viable for entertainers and lawyers.)