Did you hear that 50 Cent is suing a Miami doctor for penis enhancement claims? It may be difficult for regular people to sympathize on any level with wealthy celebrities these days, but it’s hard not to feel bad for rapper Curtis Jackson, also known as 50 Cent, who claims he was duped into becoming the unwitting face of an ad campaign for a plastic surgery clinic in Florida.
In a lawsuit filed in the state on September 16, Jackson claims he was horrified to find that a picture he posed for in 2020 with what he thought was a fan was being used by the owner of the clinic to advertise its services, including penis enlargement surgery.
To make matters worse, Jackson alleges the clinic’s owner Angela Kogan “shockingly” claimed that he was a client that had undergone a penis enhancement procedure at her Perfection Plastic Surgery & Medspa clinic in Miami. Jackson is now suing Kogan and Medspa for violating his publicity rights by using his image without permission in the spa’s social media advertising on Instagram and elsewhere.
But before social media even existed, a long list of celebrities had to go to court over the misappropriation of their images and likenesses by companies big and small. For instance, basketball legend Michael Jordan had to sue two companies who had taken out advertisements in a Sports Illustrated commemorative issue celebrating his induction into the basketball hall of fame. The ads clearly tried to cash in on his image by associating him with their brands, yet they hadn’t even asked his permission.
50 Cent sues Miami plastic surgeon
One company, a supermarket chain, was found to have violated its own policy by not clearing the ad with its legal team before it was published. A jury eventually awarded Jordan nearly $9 million, which he reportedly donated to several charities in Chicago, and the other case was settled following a ruling by a federal appeals court.
Other cases, though, aren’t as cut and dry as Jordan’s lawsuits. In those instances, relatively small companies that could likely never afford to ink a deal with a celebrity of his stature tried to sneakily tie their brands to his name by taking out an ad in a magazine dedicated to him and his accomplishments.
But other famous people have had to deal with big brands using lookalikes in commercial advertising, a not-so-subtle tactic to associate a celebrity with their products without having to compensate them or ask for permission. Talk show great Johnny Carson once had to go to court against a company called Here’s Johnny Portable Toilets. Soccer great Pele sued Samsung after the company reportedly backed out of an endorsement deal at the eleventh hour, only to turn around and use a Pele-doppelganger in a commercial.
Kim Kardashian sued Old Navy
In 2011, reality television star Kim Kardashian sued Old Navy and the Gap for $20 million over the use of a lookalike in a commercial, though the case was settled and never went to trial. Another oft-cited example of celebrity likeness rights lawsuits involved singer and actor Bette Midler, who sued Ford Motor Co. and an ad agency in the 1980s for $10 million over the use of a song in a car commercial sung by someone who sounded strikingly similar to Midler.
More modern examples involve celebrity lookalikes featured in video games, such as Lindsay Lohan, who sued the makers of Grand Theft Auto over a character who bore a striking resemblance to her. In somewhat strange company, that same month saw another lawsuit against a video game company filed by former Panamanian dictator Manuel Noriega over being featured in Call of Duty. The company, Activision Blizzard, celebrated when the suit was dismissed by a California judge in 2014. The company’s lawyer at the time, Rudy Giuliani, called it an “important victory … for protecting free speech.”
Indeed, publicity rights often come into conflict with the First Amendment, copyright law, and other arguments over so-called fair use, as well as the contrast between commercial and non-commercial exploitation of someone’s image or likeness. In the age of print and television, publicity rights cases were no doubt more straightforward, involving companies releasing ad campaigns using the likeness of a well-known public figure without permission, spurring a lawsuit and an order to halt the campaign and pay damages.
Social media in our daily lives
Simple enough, but now, complicating the situation, even more, is the ubiquitous presence of social media in our daily lives. I can’t tell you how many Facebook ads have popped up on my feed with a picture of Elon Musk hawking all kinds of kooky products and services, even though Tesla famously doesn’t advertise. It’s safe to assume that none of these social media-based advertisers sought Musk’s permission before going live with their ad campaigns.
This phenomenon has not gone unnoticed by entertainment lawyers. As attorney Ramela Ohanian observed in a 2020 article for the American Bar Association, social media remains somewhat of a digital wild west when it comes to copyright laws and publicity rights.
“Not everyone is familiar with copyright law, and even if people are aware of it, the ease and accessibility of social media make copyright law easy to ignore,” Ohanian wrote. “With Instagram, the right of publicity is now as vulnerable as ever. People post and repost photos all the time with no understanding and/or care about who owns the photo.”
50 Cent Sues MedSpa For Using Photo
While not necessarily entirely applicable to 50 Cent’s case, Ohanian’s observation reveals part of the trouble he found himself in after taking a photo with a purported fan. Celebrities take photos with fans all the time, likely operating under the assumption that the image would be for private use or public posting on Instagram. No big deal for most movie stars or rock stars or athletes, but as 50 Cent found out the hard way, taking what he thought was an innocent photo with just another fan got him caught up in a situation he could have never anticipated.
Now he’s been forced to file a lawsuit while also denying undergoing penis enlargement surgery, all stemming from a split-second click of a camera phone. As a wealthy music star and businessman, he doesn’t need the money from a damages award from a small surgery clinic in Florida. He needs the court to rebuke the clinic’s owner and order her to halt the false association through social media ads and PR campaigns.
Public figures and entertainers
Obviously, public figures and entertainers have a huge financial stake in protecting their reputations, carefully choosing what products or services to endorse lest they harm their brands by associating themselves with less-than-admirable companies. Johnny Carson didn’t want to be associated with toilets. Bette Midler didn’t want to sell cars. Michael Jordan didn’t want to be the public face of a pair of regional grocery chains. None of them needed the money, of course, and the damages awards were likely secondary to the courts granting relief and ordering the companies to take down the ads.
But Jackson’s lawsuit is somewhat novel in comparison since it involves a small company offering niche services and advertising almost exclusively on social media. Cases from the past have involved big-name celebrities and big-name brands using traditional media advertising in print and on television.
Jackson’s case, on the other hand, is only the latest example of how social media’s growing dominance over the global advertising market carries perils for both members of the public and celebrities alike. Unlike wealthy public figures, though, who have the time and resources to fight unauthorized use of their likenesses in court, regular people often face uphill battles against Goliath-sized opponents on unlevel playing fields.
If 50 Cent did get penis enhancement surgery, and his Doctor shared that with the world, that’s wrong.
Filing a class action lawsuit against Facebook
Take the case of a woman in British Columbia named Deborah Douez, who filed a class action lawsuit against Facebook back in 2012. Douez, as the lead plaintiff, claimed the company wrongfully used her name and likeness and those of millions of other users in “sponsored stories” on the social media platform without consent, in breach of several province’s privacy laws.
Unsurprisingly, Facebook has fought the lawsuit tooth and nail by launching numerous appeals all the way up to the Supreme Court of Canada. At issue is whether users gave “implied consent” to Facebook to use their likenesses in sponsored posts and a “forum selection” clause in the website’s terms of service that purportedly entitles Facebook to choose which jurisdiction a legal dispute should be heard.
Luckily for Douez and millions of other class members, the majority on the Supreme Court of Canada recognized the “grossly uneven bargaining power” between companies like Facebook and their users, in addition to the problematic nature of “forum selection” clauses. In finding Facebook’s forum selection provision unenforceable, which would have punted the case to California, the Supreme Court of Canada observed that such clauses can’t “unduly impede the ability of consumers to vindicate their rights in domestic courts.”
50 Cent suing Miami doctor
“Facebook is a multi-national corporation which operates in dozens of countries,” the court found in 2017. “[Douez] is a private citizen who had no input into the terms of the contract and, in reality, no meaningful choice as to whether to accept them given Facebook’s undisputed indispensability to online conversations.”
Five years later, back in June this year, a judge ruled that the case can indeed move forward in the province. Douez’s lawsuit is no small matter, potentially involving millions of class members who had their likenesses used in Facebook Sponsored Stories between 2011 and 2014, necessitating a lengthy six-month trial where the damages sought are estimated between more than $800 million and $2 billion. In a recent court ruling, the judge shot down many of Facebook’s counterarguments about users giving the company consent and sided with Douez on a number of crucial issues involving people’s legislated right to privacy.
“The right to privacy requires that consent be sought, not presumed,” Justice Nitya Iyer wrote in her June 2 ruling. “There was no way for a User to choose not to be featured in Sponsored Stories or particular Sponsored Story other than by not engaging in any social actions that could potentially become the subject of Sponsored Stories or by ensuring that their audience was always “only me”. Doing so would defeat the purpose of being on Facebook.”
The digital age of social media
In her conclusion, Justice Iyer found that users like Douez did not implicitly or expressly consent to their likeness being used in the platform’s advertisements in violation of provincial privacy laws. “Privacy rights protect an individual’s right to be left alone, in other words, to choose not to enter the public domain,” she wrote.
This is the common legal ground upon which Douez, the class, and rapper 50 Cent now tread. All of them allege that they’ve found their likenesses exploited by commercial advertisers without their permission, though 50 Cent’s situation is perhaps more egregious and embarrassing.
But there’s no doubt that in the digital age of social media’s dominance over advertising, celebrities and regular folks alike aren’t safe from having their privacy violated and their image used in a potentially nefarious way. Meanwhile, their only recourse is filing lawsuits, their hopes for justice out of their hands, and in the hands of judges and lawyers.
I am still not sure if 50 Cent got penis enhancement surgery or not, maybe that will come out if it goes to trial.
Alistair Vigier is the CEO of ClearwayLaw.com, a website that allows the public to leave lawyer ratings. He enjoys writing about business, real estate, and law.
