Plastic Surgeon Owns Copyright in Before-and-After Photos of Patient–Denenberg v. LED Technologies

By Eric Goldman

Denenberg v. LED Technologies, LLC, 11-cv-03155-RBJ (D. Colo. Sept. 28, 2012)

Dr. Steven Denenberg is a facial plastic surgeon. Like many doctors performing elective procedures, he takes before-and-after photos of his patients and publishes some of them on his website. The opinion doesn’t mention whether Dr. Denenberg obtains releases from his patients, but I have to assume he does.

LED asked an ad agency to put together an infomercial for its “anti-aging light.” The agent pulled photos off of Dr. Denenberg’s website and incorporated them into the infomercial. The opinion doesn’t explain how the photos were used; surely LED didn’t provide false testimonials.

LED doesn’t have much to defend against Dr. Denenberg’s copyright infringement claim. LED argued that photos aren’t copyrightable, an obviously futile argument:

In the act of taking the pictures, Dr. Denenberg had to make creative decisions, no matter how “crude, humble, or obvious” they may have been. Further, in arranging the photographs on the website, Dr. Denenberg had to make additional creative decisions. The pictures are independent creations with at least a modicum of creativity

LED also argued that maybe Dr. Denenberg’s nurse took the photo instead of Dr. Denenberg, also a futile argument. Although Dr. Denenberg said he usually takes the photos because he likes doing so, it wouldn’t matter as the nurse’s photo would be an employee work-for-hire.

LED’s only good news is that the court rules that it didn’t infringe willfully for statutory damages purposes, but the court reserves LED’s innocent infringement damages adjustment for fact adjudication. I’m not sure how much of a difference that would make to the final damages award; in any case, the real financial payoffs in this case will depend on whether the court awards Dr. Denenberg his attorneys’ fees, which could very well exceed the damages award. Given the weaknesses of LED’s defenses, this could be a good case for a fee shift.

This case doesn’t really teach us much we didn’t already know, but I still thought it was worth sharing for two reasons. First, after the whole Medical Justice fiasco, I’m on high alert for situations where doctors might be overclaiming copyrights (probably not the situation in this lawsuit). Second, and perhaps more importantly, this lawsuit plus the Medical Justice situation make it clear that doctors are more frequently running into sophisticated IP issues, especially copyright issues, than they used to. I wonder if there are opportunities for a new niche IP practice focusing on the unique IP needs of doctors.