50 Cents of Endorsement: gossip blog plausibly D's agent for purposes of false endorsement, right of publicity

Jackson v. Kogan, 2022 WL 17582560, No. 22-22972-Civ-Scola (S.D. Fla. Dec. 12, 2022)

Jackson, aka 50 Cent, is a famous artist. Defendant MedSpa is run by defendant Kogan; it offers plastic surgery and minimally invasive procedures such as Botox treatments. In 2020, Jackson “happened to be in the proximity” of MedSpa’s location. “At Kogan’s request, Jackson posed for, and took, a picture with Kogan in front of a backdrop stamped with the words ‘PERFECTION MED SPA’ throughout.”

Jackson allegedly believed that Kogan “simply wanted a photograph with [him] exclusively for her own private enjoyment.” (Um, sure.) Nonetheless, MedSpa then uploaded the photo to one of its public Instagram accounts. The photo’s caption: “Thank you @50cent for stopping by the number one med spa @bh_perfection_medspa [ ] [ ] #50cent #bhperfectionmedspa #perfectionmedspa #medspa #celeb #vip #facial #laser.” Kogan posted a version of that same photo on to her public Instagram account with essentially the same hashtags. MedSpa repeatedly reposted the photo and shared it for articles published by a magazine and an online blog.  

In mid-2022, “a celebrity gossip media outlet known as The Shade Room (TSR)” published an article titled “Penis Enhancements Are More Popular Than Ever & BBLs Are Dying Out: Cosmetic Surgery CEO Angela Kogan Speaks On It.” The article was the result of the efforts of Kogan’s talent agent, who introduced Kogan to TSR representatives. On TSR’s Twitter, the link’s thumbnail image was composed of two side-by-side images: on the left was Kogan’s photo with Jackson, and on the right was 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.” Kogan also posted a screen capture video scrolling through the TSR article on her Instagram account.

The video shows a part of the article that quotes Kogan as saying, “At the moment we are seeing a major shift in men getting plastic surgery ... [m]en have really stepped up and are getting more surgery than we think.” Directly beneath that quote is Kogan’s photo with Jackson. “The article includes MedSpa’s phone number, statements entreating readers to call for a free consultation, and offers of promotional discounts on cosmetic surgeries and procedures.”

Kogan’s caption for the Instagram video included hashtags such as #plasticsurgery, #theshaderoom, #celebrity, and #penis. “Users responded to the video with crude commentary such as ‘@50cent Can I see the before and after pics?’, ‘Call him 50 inch [ ]’, and ‘Why they got 50 cent up there talking bout [ ] enlargement[.]’”

The complaint includes some interesting tidbits, including that other posts would include a "not our client" disclaimer (but maybe, based on the discussion, Jackson actually was their client, but not for penile enhancement)--see the images below.

replies implying he was a client, which the complaint doesn't directly controvert

"not our client" example of Instagram post (note that this wouldn't remove ROP liability unless the First Amendment protects against it, cf. In re Elster)

blog claiming 50 Cent as a client

"she paid him" comment with reply "I don't need to pay for advertisement"

Jackson brought claims for unauthorized misappropriation of his likeness under the Florida right of publicity statute; invasion of privacy; Lanham Act false endorsement and false advertising under the same statute; conversion; and unjust enrichment. All the claims survived.

Florida law prohibits the unauthorized publication of a person’s name or likeness for a commercial or advertising purpose without express written or oral consent. Defendants argued only that Jackson consented to the photo being used on Instagram without mentioning “the screen capture video and the promotional value it doubtlessly served.” Anyway, consent was a factual issue.

Invasion of privacy: Jackson’s allegations supported misappropriation and false light theories.

Lanham Act false endorsement: Yep. Jackson’s allegations—particularly those concerning the video—sufficiently alleged false endorsement, including by alleging a comment on one of defendants’ posts “in which an Instagram user deduces that Jackson was the Defendants’ paid promoter. Even more clear are the crude comments connecting Jackson to Defendants’ penile enhancement services, which followed the Defendants’ video publication. Again, Instagram users publicly responded with comments like ‘@50cent Can I see the before and after pics?’, ‘Call him 50 inch [ ]’, and ‘Why they got 50 cent up there talking bout [ ] enlargement[.]’”

No mention of Jackson’s name or explicit link was required. “ [A] picture is worth a thousand words. This one in particular depicts a worldwide celebrity next to Kogan with MedSpa’s name repeated all throughout the background. The promotional value is evident.” [Which, again, is why it defies belief that Jackson didn’t consent to something public, though I agree that his implicit consent shouldn’t extend to the penile enhancement stuff.] This wasn’t an incidental use; the photo’s importance derives from his presence in it and the caption directly promoted defendants’ business: “Thank you @50cent for stopping by the number one med spa @bh_perfection_medspa [ ] [ ] #50cent #bhperfectionmedspa #perfectionmedspa #medspa #celeb #vip #facial #laser.”

There was plausibly a specific implied endorsement of defendants’ plastic surgery services or penile enhancement surgery, given the video and the TSR article itself, “insofar as Kogan or her agent procured its publication.” Both of them surrounded the photo of Jackson with images and text that promote penile enhancement surgery and the defendants’ business. “An implied endorsement is, at minimum, reasonably deducible.”

False advertising: Same.

Conversion: The Eleventh Circuit has recognized conversion claims in the context of intangible property rights.  Jackson alleged he would have never consented to the photo had he known it would be used promotionally, and that was enough. [But what makes that conversion? How did defendants deprive him of property to which he was entitled? He still owns his right of publicity!]

Unjust enrichment also survived because of his alleged lack of consent plus the “surely great” promotional value defendants received from repeatedly sharing the photo; even if he received “free medspa services” in return, that wasn’t enough to show that they weren’t unjustly enriched.