Copying before-and-after surgical photos can be false advertising despite Dastar

Aesthetic Associates, Inc. v. Key West Institute for Plastic Surgery, Inc., No. 18-10059-CIV-MARTINEZ-OTAZO-REYES, 2019 WL 1922854 (S.D. Fla. Feb. 5, 2019)

Plaintiff, whose principal is Dr. Portuese, sued defendants for copyright infringement, removal of CMI and false advertising in passing off Dr. Portuese’s surgical results as their own. A patient consented to before-and-after pictures of a rhinoplasty, to be posted on Portuese’s websites; plaintiff registered the copyright.

Defendants allegedly posted the same before-and-after patient photographs on their social media accounts in a manner that attempts to pass off Portuese’s surgical results as those of defendants.

Defendants said Dastar barred the claim; the court disagreed.  Plaintiffs alleged the use of copyright photos with false representations of fact “in a manner likely to cause confusion and deceive the public into believing Dr. Loessin performed the surgery depicted in the before-and-after patient photographs and that he can obtain those results.”  That was enough to state a claim for reverse passing off.  It wasn’t just a restated copyright claim.  [Less convincingly, the court distinguishes Dastar because the copyright here isn’t expired—irrelevant—and because defendants didn’t “manufacture” the photo at issue, but of course they did “manufacture” their copy; the whole point is that they made an unauthorized copy, but didn’t “make” the expressive content of their copy.  The court should have rested on its better reasons.]