50 Cent Sues for Right of Publicity
Recently, rapper 50 Cent filed a complaint in federal court in Florida over the use of a social media photo by a fan in their advertising campaigns. The original image was used in advertising the fan’s business as a plastic surgeon–but that wasn’t the rapper’s problem with it. Rather, the lawsuit came after the image was used again, in an allegedly suggestive way, without his permission. Here are our two cents about 50 Cent’s right of publicity.
Stretching the Truth?
When 50 Cent took a photo with a fan in 2020, he did not have reason to suspect that the photo would be used in an article about penis enhancement. He also did not raise any objections we’re aware of when the fan posted the photo to social media to promote her plastic surgery practice. However, the surgeon was later interviewed for an article on “male sexual enhancement procedures.” The article used the photo of 50 Cent, placing it near a photo of a faceless nude man “obtaining a penile enhancement procedure,” with an eggplant covering the man’s groin area.
The plastic surgeon shared the article across her social media pages, catching 50 Cent’s attention. His lawsuit alleged that the use of the photo shared across the surgeon’s social media constituted a violation of his right of publicity—that is, his right to control the use of his own identity for commercial purposes. 50 Cent argues that, by sharing the penile enlargement photo next to the photo of 50 Cent, the surgeon made an implied advertising claim that she performed an enhancement procedure on him. The surgeon countered that she had his consent to use the photo, the photo did not imply that she performed a penile enlargement procedure on the rapper, and the use of the photo was not for commercial gain.
Case Shortcomings and Potential Consumer Survey Use
This case is in its infancy, but it parallels issues that have arisen from social media photo sharing. What defines “commercial purposes” in the age of influencer and celebrity marketing? We shared a post recently on influencer marketing, but the right of publicity in the age of social media can be more complicated. Where celebrities are paid hundreds of thousands of dollars to promote businesses, services, or products, a fan who uses a celebrity’s photo to promote their business without permission, may be using valuable intellectual property for free—and thereby violating that celebrity’s right of publicity.
Consumer surveys are useful in litigation when the matter turns on consumer perceptions. Would a reasonable consumer infer that 50 Cent was a past patient of the surgeon? Does the surgeon have the right to use this photo in the context of a news article that places a celebrity photo in close proximity to a patient photo? Courts may look to context in this case, and the results may be instructive to those who are looking to use of a celebrity snapshot as an unlicensed celebrity endorsement.