50 Cent is a prolific American rapper. He’s a celebrity.

He just sued a Miami Beach medspa alleging misappropriation of his image (in this case, his picture on Instagram) without his consent and false advertising.

What happened?

Angela Kogan runs a Miami Beach medspa. The medspa performs an array of aesthetic procedures. Facials. Botox. Dermal Fillers. Laser Treatments. Body Contouring. Tattoo Removal. Hair Restoration.

And Penile Enlargement.

In fact, on its website, of all the services just listed, penile enhancement is on top. Above the fold.

Approximately two years ago, 50 Cent was in the office. For what reason, we don’t know. In any event, the presumed owner, Angela Kogan, had her photo snapped with 50 Cent. It was posted on the business’s Instagram account. The label below the photo was benign.

“Thank you @50cent for stopping by the number one med spa @bh_perfection_medspa.”

Not much more. It had a few hashtags like #medspa; #celeb; #laser; #facial; #50cents; #bhperfectionmedspa. Fairly benign.

You can judge for yourselves.

That was it, until recently.

A publication unconnected to the medspa, The Shade Room, distributed an article on aesthetic surgery and men. It promoted that article with this:

“More men are getting surgery (down there) than ever before, and BBLs (Brazilian Butt Lifts) are fading away! The CEO of the leading med spa for celebrities in South Florida dishes on the latest surgical trends with The Shade Room.”

This is followed by the picture of 50 Cent and Ms. Kogan and the image of a surgeon making some type of slice, presumably with a scalpel. The body part being sliced was covered by a large eggplant emoji. The label below the picture was “Penile Enhancements Are More Popular Than Ever.”

50 Cent sued and the lawsuit is scheduled for trial on July 3, 2023. 50 Cent alleged he suffered public embarrassment from the implication that he needed some type of enhancement.

“Set for trial in July, no enhancement necessary, these fools put themselves out of business. SMH.”

Despite the implication of the photo, 50 Cent’s ex-girlfriend Vivica A. Fox called Kogan a liar for suggesting Fif had a penis enhancement. “Angela, you lying,” said Fox with a smile. “That’s all I’m going to say. if that’s one thing I know that’s true, he didn’t have to get no enhancement. He’s good!”

Legally, what’s going on here?

First things first.

50 Cent did appear to be in Ms. Kogan’s medspa. It’s unlikely he randomly walked in there. Ms. Kogan is wearing her business clothes – scrubs. And the hashtags suggest nothing other than laser and facial. Ms. Kogan used the photo narrowly for general publicity. She defended she had his consent to do so.

Did she? Dunno.

Ideally, she should have obtained a signed HIPAA authorization that identified the type of photo that would be used and for what purpose. A typical HIPAA authorization form will include this language.

“Please note that once photos, videos and/or digital images are used for any of the authorized purposes above, that information may no longer be protected by HIPAA.”

Meaning once the photos are used, they MAY be picked up by others and used for other purposes.

Including an article.

(By the way, if you need/want HIPAA-compliant templates for photo authorization, contact us.)

If Ms. Kogan had little to do with the selection of The Shade Room’s photo adjacent to the penile enhancement innuendo[1], her case should be defensible. It is true her practice performs those enhancement procedures. But The Shade Room published the article. Most plaintiffs’ lawyers know it is MUCH harder to sue a journalist compared to a healthcare practice. This may explain the choice of defendants.

What if Ms. Kogan never went through the motions of getting 50 Cent’s signature on authorization? Well, she’ll need to defend by arguing that she had his verbal authorization. Note this case is in state court, citing state law. This is not about HIPAA, which is based on federal law. And HIPAA does not give a plaintiff a private right of action. A patient can file a complaint to the Office of Civil Rights (OCR), and potentially OCR will run with it. But the patient cannot sue for damages in federal court based on HIPAA. A patient CAN sue for monetary damages, as here, in state court. 

It is sometimes said there’s no such thing as bad publicity. I’m not sure I agree. If you use patient photos in your marketing efforts, obtain the proper authorization. Doesn’t matter whether they are a VIP or Joe Nobody.

And if someone has pirated your photos (after you have obtained proper authorization) to promote their website, you may be able to enforce copyright ownership of your pictures. That’s another story for another day.

What do you think?

[1] The eggplant emoji is often used as shorthand for a penis. https://emojiguide.com/blog/eggplant-emoji/

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.