What 50 Cent Really Said–Use the Term “50″ and You’ll Hear From My Lawyer
Jackson v. Gary Barbera Enterprises, Inc. (E.D. Pa. complaint filed Aug. 2005).
A car dealer in Philadelphia runs an advertisement for Dodge Magnums. Included is a picture of the popular rapper 50 Cent and the phrase “Just Like 50 Says.” 50 Cent has a federal trademark registration in “50 Cent” for various categories but alleges that he is “commonly known…informally as ’50.’”
On the surface, this seems like a garden-variety right of publicity violation (a cause of action apparently alleged but omitted from the Smoking Gun’s papers). If this use was without permission, then I don’t see much room for a strong defense.
Note, however, that the dealer is claiming that 50 Cent recorded two sound bite radio promotions for the dealer, in which case perhaps the newspaper ad really is just like 50 Cent said. If so, this may end up as a simple interpretation of the scope of the publicity consent/endorsement contract from the radio promotion, or it could turn into an extremely complicated case about the scope of “fair use” of a celebrity’s personality. Consider the analogy–Oprah raves about a product on her TV show; to what extent can that product manufacturer use Oprah’s quotes (attributed to Oprah) in their marketing?
However, I’m more interested in the trademark violation on a stand-alone basis. From my perspective, using the photo isn’t a trademark violation. And I think it’s pretty hard to extend the trademark registration in “50 Cent” to cover “50.” It’s possible that 50 Cent has developed common law trademark rights in the term “50,” but that would require having developed secondary meaning. I know 50 Cent had some popular albums, so I’m pretty skeptical about that! I’d love to see how many people, seeing the phrase “Just Like 50 Says” without the photo, would think that the phrase referenced 50 Cent. Although I’m not the target audience, I strongly suspect the vast majority of readers would find that opaque.
In any case, I always find it interesting when trademark owners try to pluck individual letters or numbers out of the social lexicon and convert them into proprietary assets (this is hardly the first time). You might want to think twice the next time you punch in “50″ into your calculator or spreadsheet.
Finally, in a partially-ironic twist, it seems like every newspaper covering this story has used it as an excuse to show more pictures of 50 Cent. Newspaper use of photo to sell newspapers = OK, car dealers use of photo to sell cars = not.