Plastic Surgeon’s “Before & After” Photos Violate NY Publicity Rights–Manzione v. Mashkevich

Dr. Grigoriy Mashkevich performed rhinoplasty on Catherine Manzione and took before-and-after photos of Manzione. Confusingly, Manzione apparently signed two seemingly inconsistent form consent agreements regarding the photos. One said:

I do not want my photos to be used. I understand that these photos will be placed in my confidential records only.

Another said that the photos were the doctor’s “property” and:

If, in the judgment of the Doctor, medical research, education or science will benefit from their use, such photographs and related information may be published and republished in professional journals or medical books, or used for such publication or use, including as presentation materials.

The photos were posted to Dr. Mashkevich’s website moderncontours.com. This lawsuit followed.

The case raises two key questions. First, what to do with the inconsistent consents? The court sidesteps the implicit conflict, saying even the more permissive consent didn’t help the doctor because it only applied to “professional journals or medical books,” not the doctor’s website.

Second, does publishing the photos on the doctor’s website violate New York’s statutory publicity right (Civil Rights Law Sec. 50-51)? The court says yes:

the Mashkovich [sic] defendants’ [sic] do not dispute that the website was intended to solicit patients and advertise Dr. Mashkevich’s services. Indeed, the use of the plaintiff’s “before and after” photographs was surely an attempt to show the quality of Dr. Mashkevich’s work to potential patients.

It seems like it should be an open question whether a photo on a company’s “brochureware” style website always constitutes advertising. I imagine we could hypothesize counter-examples. Still, the doctor didn’t contest the point, so the complexities underlying that question must await another case.

After the court found a publicity right violation and rejected the doctor’s consent defense, the court granted summary judgment to Manzione. The battle now moves to the amount of her damages.

The practice pointer here is ridiculously obvious: Doctors, NEVER post or publish before/after photos without explicit, unambiguous consent from the patient. I have to assume this point was already well-understood in the doctor community, so I’m not sure what went wrong here.

This case also provides more evidence that “publicity rights are one of the hottest areas of IP litigation right now.” See our Advertising and Marketing Law casebook chapter on publicity rights in advertising and count the number of defendant wins in the principal cases we cover (spoiler: it’s zero).

Case citation: Manzione v. Mashkevich, 155545/2013 (N.Y. Sup. Ct. June 12, 2014). The complaint.

Some related posts:

* Plastic Surgeon Owns Copyright in Before-and-After Photos of Patient–Denenberg v. LED Technologies
* Breastfeeding Mom Can Sue Video Producer Despite Signing a Blanket Release–Sahoury v. Meredith
* How Doctors Should Respond To Negative Online Reviews

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