Rapper 50 Cent (born Curtis J Jackson III), in a lawsuit titled Jackson v Angela Kogen and Perfection Plastic Surgery,1 is suing a spa for using his image to advertise their penis enlargement services. On December 12, 2022, a judge in the United States District Court for the Southern District of Florida denied a motion to dismiss the case, stating that all of Jackson’s claims remain viable. In an 8-page decision, Justice Scola outlined his reasons for the decision, including the legal standards of each of the rapper’s claims.
The photo that lies at the heart of this matter is one which Jackson posed for on February 1, 2020, when Kogen reportedly asked for a selfie with him. Jackson has gone on the record to state that he believed she “simply wanted a photograph with [him] exclusively for her own private enjoyment.”2 However, Kogen posted the photo a number of times on both her personal and business social media accounts, using hashtags to promote her spa. Justice Scola notes in his judgement that at no point did Kogen ask for Jackson’s permission to use this photo.
The true controversy surrounding this image lies in an article by The Shade Room titled “Penis Enhancements Are More Popular Than Ever & BBLs Are Dying Out: Cosmetic Surgery CEO Angela Kogan Speaks On It.” This article was reposted on Twitter, where two images were used as thumbnails: one, a close-up shot of a medical practitioner performing what is obviously being implied to be a penile enhancement surgery; the other, the photograph in question.
50 Cent and his legal team have asserted six claims against the defendant. First, that this is an unauthorised misrepresentation of his likeness under Fla. Stat. § 540.08, which states that, “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 . . .” Here, Jackson argues that he did not consent to the use of this photograph for anything outside of the aforementioned ‘private enjoyment’ which he believed was the motivation behind taking the photo. The misrepresentation, he argues, is that the use of this image as part of this article implies that he received surgery from Perfection Plastic Surgery.
His second claim is a common law tort of invasion of privacy, which includes the unauthorised use of a person’s name or likeness; in this case, the photograph in question attaches his face and name to all of these posts and articles. Justice Scola also touches on the claim of “false light in the private eye” which falls under the common law tort, though the defendant did not speak on this matter.
Jackson also makes Lanham Act claims against the defendants. The Lanham Act is a trademark act which addresses, among other things, civil liability in relation to the misleading representation of a person in regard to approval or endorsement of a product or service. There are two claims that he makes under the Lanham Act: false endorsement and false advertising.
The fifth claim against the defendants is for conversion – that the defendants deprived Jackson of his property for an indefinite amount of time through the use of this photograph. In response to this claim, the defendants argued that they had consent to use this photograph, precluding Jackson from being able to make this claim.
Lastly, Jackson makes a claim of unjust enrichment against the defendants. Justice Scola notes that in regard to the third element of unjust enrichment under Floridian law, it is not that Jackson was inadequately compensated for the photograph itself, but that he was inadequately compensated for the use of this photograph.
The defendant’s motions to dismiss all six of these claims were denied. In light of this decision, this lawsuit will proceed.
Watch this space as we continue to follow this case.
1Jackson v. Angela Kogan & Perfection Plastic Surgery, Inc., Civil Action No. 22-22972-Civ-Scola, 2022 U.S. Dist. LEXIS 223577 (S.D. Fla. Dec. 12, 2022)
2Ibid at para 3