ATTORNEYS FOR THE PLAINTIFF: Wilentz Goldman & Spitzer and Freidin & Dobrinsky, P.A.
ATTORNEY FOR THE DEFENDANT: Reed Smith LLP
Paul Wooten, J.
In this action for Intentional Infliction of Emotional Distress (IIED), Defamation and violations of New York Civil Rights Law §§ 50 and 51, defendant Curtis James Jackson III, a/k/a 50 Cent (Jackson) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint. Plaintiff Lastonia Leviston (Leviston or plaintiff) opposes the motion, except that she agreed to withdraw her third cause of action for defamation, and has done so.
Jackson, who goes by the name 50 Cent, is a well-known rap musician. He maintains that in 2009 he was involved in a "rap war" with nonparty Rick Ross (Ross), another rap musician (see Jackson's Amended Memorandum [Memo] of Law in Support, p. 3). As Jackson describes it, rap wars or beefs, are common in the rap and hip hop culture, and involve irritating other artists to create more interest, develop more awareness for themselves and create competition, or battles, as to who can create material up to standard' quickly (Jackson Examination Before Trial [EBT], p. 13-14). As part of his rap war with Ross, Jackson posted several videos on his website, thisis50.com. Those videos mocked Ross, generally through a character Jackson created called "Pimpin' Curly, " Jackson's alter ego. Ross started calling Jackson "Curly" during their rap war, and Jackson added the name Pimpin' to mock Ross and as a result of a dispute with someone else. The videos were uploaded to a YouTube channel that Jackson's employees created in 2008.
Ross is the father of Leviston's younger daughter. At the time that Leviston was involved with Ross, Ross had not yet become well-known or financially successful. Ross is also the father of another child, whose mother, Tia Kemp (Kemp), went to Jackson's offices in New York during Jackson's rap war with Ross. Jackson created a video in which he interviewed Kemp, who alleged that Ross was not taking care of his child or paying child support. Jackson made two other videos with Kemp. Those videos were also posted on YouTube.
In 2008, Leviston who lived in Florida, testified that she met nonparty Maurice Murray (Murray) in New Jersey (Opposition, Leviston EBT, exhibit A at p. 36). On June 30, 2008, Leviston and Murray filmed themselves having sex at Murray's apartment in Newark, New Jersey, using Murray's camera (the Videotape) (id. at 66-67). According to plaintiff, the two agreed that the Videotape would be kept private, just for their own use (id. at 69). Leviston and Murray broke up twice, and each time they discussed either giving the Videotape to Leviston or destroying it. The first time they broke up was around Labor Day in 2008. They reconciled in January of 2009, at which time Leviston tried unsuccessfully to find the Videotape, which Murray said he could not find (id. at 84-88). Leviston maintains that June 30, 2008 was the only time that she was ever videotaped engaging in sex (id. at 70). She denied ever being a call girl or companion, although she acknowledged posing for a magazine that included her photograph as that of a call girl, by the name of "Brooke."
Some time during the first half of March 2009, Murray brought the Videotape to Jackson, whom he had never previously met (Opposition, Jackson EBT, exhibit C at 15). Jackson testified that he never had any contact with Leviston, nor did he speak to her about the Videotape (id. at 77). Upon viewing the Videotape, Jackson stated that he recognized Leviston as the mother of Ross's daughter (id. at 17), and gave the Videotape to his computer person, Christopher Singh a/k/a Broadway (Singh), who took material off the tape and converted it into digital format so that it could be saved to his computer and edited (id. at 34-35; Opposition, Singh EBT, exhibit E at 37).
Jackson testified that he decided to inject his character, "Pimpin' Curly" into the Videotape, and performed a skit that was spontaneous and not rehearsed (Opposition, Jackson EBT, exhibit C at 35-37). Singh ran the camera, and edited the Videotape, blurring Murray's face in order to protect his identity, yet Leviston's face was not blurred (Opposition, Singh EBT, exhibit E at 41-42; Corentin Villemeur EBT, exhibit D at 77). On the tape, Jackson states that he paid for the Videotape, which he reasserted in a radio interview with Tim Westwood that he "paid a few dollars" (Opposition exhibit H at 5), however at his deposition, he denied paying for it (Opposition, exhibit C at 76-77, 102-103).
Jackson placed a trailer for the video on his website, thisis50.com, on or before March 12, 2009. The website is owned by Jackson, and he makes money from it through advertisers. The site attracts millions of visitors every year. Jackson also used the Twitter page of his newly created other website, boobootv.com (BooBooTV), to promote the trailer and the full length Videotape. The trailer was picked up and posted on another website, worldstarhiphop.com, the same day, and it also appeared on the same date on BooBooTV. BooBooTV does not have advertisers, and Jackson testified that he created it in order to be able to post the edited Videotape on a site that had no advertising.
The following evening, March 13, 2009, the edited Videotape went live on the Internet, and was picked up by many websites. Jackson maintains that Ross is the one responsible for the release of the Videotape because he somehow obtained it from an email account, either an account of G-Unit Records which is Jackson's record company, or one of his employee's personal accounts (exhibit C at pg 55), and released it on his website thisissabrinassin.com before Jackson had a chance to release it. Jackson stated that he does not know how Ross obtained the Videotape from the account it was contained in, nor does he know for sure that Ross broke into the account (exhibit C at 40-41). In their EBT testimony, neither Jackson nor any of his computer employees testified to having any knowledge or evidence that Jackson's computers had been hacked (exhibit C at 139-140; exhibit D at 104; exhibit E at 68-69). Singh testified that the Videotape was first made accessible on the Internet through the website deeperthanrap.com and thisissabrinassin.com (exhibit E at 50). The people working at Jackson's office were surprised to see it on the Internet at the time, but there was no investigation into how the Videotape was leaked (id. at 68).
Leviston's forensic computer expert, Steve Burgess (Burgess), viewed the full, 13-minute edited Videotape on hollyhoodtv.com, thisissabrinassin.com (allegedly Ross's website), worldstarhiphop.com, thisis50.com, showhype.com, rapbasement.com, boobootv.com, areyouinthatmoodyet.com and pornhub.com. Thisis50.com had a link to be redirected to BooBooTV to watch the Videotape. On July 7, 2011, Burgess also viewed the Videotape on the website worldstaruncut.com, ...