The U.S. District Court for the Southern District of Florida gave rapper Curtis J. Jackson III (famously known as 50 Cent) a holiday gift when it denied a motion to dismiss his complaint against Perfection Plastic Surgery & MedSpa ("MedSpa") and its owner for false endorsement and false advertising under the Lanham Act, and unauthorized misappropriation of likeness, invasion of privacy, conversion, and unjust enrichment under Florida law. 50 Cent alleged that MedSpa's owner, Angela Kogan, asked for a picture with him when he was coincidentally in MedSpa's proximity. The two posed for a picture in front of MedSpa-a backdrop repeatedly stamped with the words "PERFECTION MED SPA"-and Kogan then posted the photo on MedSpa's Instagram account and on her personal account, allegedly without 50 Cent's permission.
MedSpa continued to post the photo on its social accounts several times over two years and Kogan also shared the photo for online articles. As a result of the efforts of Kogan's talent agent, a celebrity gossip blog called The Shade Room ("TSR") posted an article about penile enhancement surgery with an interview from Kogan. When TSR posted a link to the article on its Twitter account, the link's thumbnail had two side-by-side images: Kogan's photo with 50 Cent and an emoji-censored photo depicting penile enhancement surgery. Kogan then posted a screen capture video scrolling through the article to her Instagram account. This video included a quote in the article from Kogan that "[a]t the moment we are seeing a major shift in men getting plastic surgery," with Kogan's photo with 50 Cent directly below. Additionally, the article included MedSpa's phone number and other statements inviting readers to call for a consultation with Kogan. 50 Cent alleges that these activities "falsely suggest that he received penile enhancement surgery from MedSpa at the expense of his reputation and dignity." Defendants moved to dismiss all counts, and the court denied the motion in its entirety.
False Endorsement Under the Lanham Act
The Court found that 50 Cent adequately pleaded his Lanham Act false endorsement claim (which requires showing a likelihood of consumer confusion, mistake, or deception as to the origin, sponsorship, or approval of the goods being sold) by highlighting Instagram comments deducing that 50 Cent was a paid promoter and crudely connecting him to Defendants' penile enhancement services (e.g., "@50cent Can I see the before and after pics?" and "Call him 50 inch"). The Court also rejected Defendants' arguments that 50 Cent's image or likeness cannot function as a trademark. Although false endorsement claims are treated "as ones for trademark infringement" in the Eleventh Circuit, the Court found that the motion to dismiss "present[ed] no convincing argument as to why [50 Cent] cannot be said to have trademark rights in the use of the photo, his likeness, or name."
The Court also dismissed arguments that, because Kogan's photo did not show 50 Cent's name or image in promoting any products but simply thanked him for visiting MedSpa, no implied endorsement existed. Instead, the Court found that the "promotional value" of the photo was evident because it depicted "a worldwide celebrity next to Kogan with MedSpa's name repeated all throughout the background." The Court also pointed out the photo thanked 50 Cent in a "humblebrag," and promoted MedSpa as "the number one med spa" associated with hashtags like "#celeb" and "#vip." Finally, it rejected arguments that the false endorsement claim failed because the photo did not contain any statements showing that 50 Cent endorsed MedSpa's penile enhancement services, finding that an implied endorsement was "at minimum, reasonably deducible" because both the screen capture video and the TSR article "surround the photo of [50 Cent] with images and text that promote penile enhancement surgery and the Defendants' business."
False Advertising Under the Lanham Act
Defendants argued that this claim failed because the photo did not falsely or misleadingly imply that 50 Cent received penile enhancement surgery. The Court found this reasoning unpersuasive because the screen capture video surrounded 50 Cent's photo with promotional material for Defendants' business and penile enhancement surgery. The Court also rejected Defendants' claim that they never shared the photo with any online publication for the purpose of suggesting that 50 Cent received their services because "nothing about Section 1125(a)(1)(B)'s text places any legal value on the Defendants' subjective intent." Furthermore, the Court found Defendants' argument that 50 Cent agreed to take the photo in exchange for "free medspa services" failed because the Court was required on a motion to dismiss to accept 50 Cent's representations that he never would have consent to the photo had he known it would be used for promotional purposes.
State Law Claims
As for the unauthorized misappropriation of likeness claim under state law, the Court declined to dismiss the claim because Defendants only addressed 50 Cent's consent to the Instagram photo and not whether he consented to use of that photo in the screen capture video. Moreover, even if the misappropriation claim was limited to the posting of the Instagram photo, the Court held that the issue of consent was a factual issue it must construe in 50 Cent's favor on a motion to dismiss. The Court rejected arguments to dismiss the invasion of privacy claim on the same grounds because the elements of invasion of privacy are the same as unauthorized misappropriation of likeness under Florida law.
Regarding the conversion claim, the Court again declined to dismiss because it was required to credit 50 Cent's assertion that he only consented to the photo for Kagan's private use. Finally, for the unjust enrichment claim (under which 50 Cent was required to show it would be inequitable for Defendants to use his likeness without compensation), the Court found that 50 Cent sufficiently pleaded inequitable circumstances because he alleged that he did not consent to the photo's use in a promotional manner. Thus, the Court denied Defendants' motion to dismiss in its entirety.
The case is Jackson v. Kogan et al., No. 22-229712-CIV, 2022 WL 17582560 (S.D. Fla. Dec. 12, 2022).
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