A motion to dismiss was filed on Wednesday by the defendats, Angela Kogan and Perfection Plastic Surgery (collectively, PPS), in a suit filed by Curtis Jackson III, best known as 50 Cent. The complaint alleged that the defendants had used a photo of the plaintiff without his permission and claimed he had received cosmetic surgery from the complaint when he had not.
Jackson’s original complaint cited violations of right of publicity, common law invasion of privacy, violation of the Lanham Act (false endorsement and false advertising), conversion, and unjust enrichment. The defendants counter by arguing that the plaintiff’s complaint does not adequately state a cause of action for which relief may be granted. PPS explains that in order to be valid, the plaintiff’s claims must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
In his complaint, Jackson asserted that a photo of him with defendant Kogan was used in a context that he did not consent to, explaining that he was under the impression that the defendant sought the photo out for her private and personal enjoyment. PPS defends that Jackson was a client of theirs, and that in exchange for their services, “plaintiff agreed to take the Photo and allow it to be shared by defendants on defendants’ social media profiles, and at no point in time have defendants ever stated of implied that plaintiff received plastic surgery services or penile enhancement surgery from defendants.”
The defendants contend that the unauthorized misappropriation claim can only stand if photo was taken to directly promote a commercial product or service without the consent of the individual. The photo, PPS maintains, “does not expressly or implicitly associate or attribute such claims to be the words of plaintiff.”
Similarly, the invasion of privacy claim is contingent upon the plaintiff’s allegations that the photo expressed Jackson’s endorsement following a penile enhancement surgery. However, the defendants merely state that they “shared the photo solely on defendants’ social media profile for entertainment purposes… never shared the photo with any online publication for the purpose of claiming or implying plaintiff received… ” a procedure from the defendant.
Jackson’s remaining claims, PPS asserts, fail as Jackson was at one point a client of the defendants and both parties mutually agreed to take a photo for an exchange of services. PPS is seeking that the Court dismiss the plaintiff’s complaint with prejudice and grant any other relief they deem appropriate.
The defendants are represented by Heitner Legal, PLLC, while the plaintiff is represented by Akerman.
