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Before and After Photos. Do You Own Them? Or Not?

02/25/19 5:15 PM


Many aesthetic surgeons and dentists use before and after photos on their web site to market their practices. They are demonstrating to the public at large what they can reasonably expect if they select their practice.

They are more than just plain vanilla images. They are photos of patients who have given permission to use their images. These patients expect these images will be used solely for the purpose for which they have given consent.

And the doctor is affirming that the type of work they do is represented by such photos. These photos are not the one in a million outlier. They are not doctored (no unintended) by lighting and shadowing to misrepresent or oversell. Indeed, the Board of Medicine and Dentistry views any such misrepresentation as false and deceptive advertising. In short, these photos are indicia of professional reputation.

I always assumed the person who shoots such pictures owns all rights to the images. That is what I expect when I hire a photographer to take headshots or film a wedding / graduation. If the photographer wants to give me access to use as I see fit, he transfers ownership to me, either by assigning ownership or licensing with a fully paid up perpetual license to use. Such transactions are not that complex. I hire the photographer. I get pictures. But behind the scenes, that’s how intellectual property issues are addressed. (OK, it’s actually a little more complex than that.)

Onward to Pohl versus MH SUB I LLC (dba Officite). Mitchell Pohl is a dentist in Florida. He took pictures of his patient, Belinda, before and after he worked on her teeth. He posted these images on his website. He even took the trouble to register these photos with the US Copyright Office.

A company called Officite found and used these images on websites promoting other dental practices.

Pohl hired attorneys who sued for copyright infringement.

The defense argued that the images contained no artistry, the bare minimum threshold for acquiring copyright.

The court agreed with the defense. The dentist lost.

The case is being appealed and I believe the outcome will be overturned.

In his ruling, the judge wrote:

“There is nothing remotely creative about taking close-up photographs of teeth. The before and after shots served the purely utilitarian purpose of displaying examples…to potential customers.”

The dentist took issue with that conclusion.

The dentist stated:

“[The judge] failed to realize that the creativity didn’t begin right there when I picked up the camera. The creativity began when the patient walked into the office and I saw a blank canvas. It stopped when I pushed the shutter.”

In a 1991 unanimous US Supreme Court case, Feist Publications, Inc., v. Rural Telephone Service Co, the justices set a low bar for copyright protection. The threshold is originality. Originality means the work was independently created by the author (as opposed to copied from another source) and it possesses some minimal degree of creativity. Even a slight amount of creativity is sufficient “no matter how crude, humble, or obvious it might be.”

The defense argued that simply aiming a point and shoot camera at someone’s mouth is not artistry.

The dentist was asked details about the photo shoot. Whether the patient was sitting or standing. What type of camera was used? The dentist was not able to remember the details. The goal of such questions was to minimize the role the dentist played in the photographic creativity.

To prevent a court from second guessing the “artistry” of the before and after photos, doctors should document and standardize items such as camera angle, lighting, exposure, and other technical aspects. Or spend time addressing (and documenting) how the subject is staged. This is a minor headache.

Still, I would argue there are public policy implications to allowing before and after pictures to be used on any website without the doctor’s permission. The most obvious reason: On the original doctor’s site, the doctor is representing HIS work – what HE is capable of performing. On another doctor’s site, it is possible for patients to be confused, wrongly believing the before and after pictures are the work of the second doctor. Now all patients will not be able to trust any before and after pictures on any site. Of course, the judge might argue there are other ways to address that dilemma such as holding the second professional accountable for false advertising or professional disciplinary action. But that requires much more effort than sending a simple cease and desist letter.

Next, patients on the original doctor’s site have given permission to use those photos in a limited way – only on the original doctor’s website. Had those patients known those photos could appear anywhere, they would just say no. In that new world, no patient would allow their photos to be used on any site. And prospective patients would now have to find some other way to assess a doctor’s talent.

Finally, we have seen cases of juvenile satirists stealing before and after photos to make YouTube videos mocking such patients for having undergone aesthetic surgery. One such budding YouTube sensation had over one million followers. After the doctor asserted a copyright claim over the original photos, YouTube took down the mockumentary, much to the patients’ relief. If the judge’s interpretation of copyright is allowed to stand, the patient will have to suck it up and just live with a third party mocking them online.

For all these reasons, I expect this copyright decision to be short-lived. Still, if you are a doctor who uses before and after pictures, document the consistent way you take these photos and add some additional minimal creative flair. The five minutes of thought you put into it today may protect your intellectual property later.

What do you think?

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ABOUT THE AUTHOR

Jeffrey Segal, MD, JD

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.

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S.E.KEasyEMedical JusticeCarla Schlisselretired Recent comment authors
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This seems like the wrong legal issue. This is an ownership rights issue, not an artistry or creative issue. The patient if they signed a model’s release may have given up rights to their photos for some form of compensation ( a discount on their dental care perhaps). But if a model’s release was not used, then it seems as though the legal rights to the photos may belong to the patient, in the same way that the patient owns their own medical records (of which the photos were a part). The patient may have given limited rights for use… Read more »

Carla Schlissel
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Carla Schlissel

Generally, dentists who redo smiles (and mouths) most often get very excited, if not simply extremely satisfied, with their work. A smile make-over, in itself, is more than “a minimal creative flair.” It’s almost like suggesting a plastic surgeon should add “a minimal creative flair” to photos of their body re-dos. Frankly, the dentists who allowed Officite to post someone else’s work on their website are opening themselves to massive problems if they, themselves, are not able to replicate the quality of artistry I assume was displayed in the original dentist’s photos. The judge who ruled against the dentist most… Read more »

EasyE
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EasyE

Goodness. We have had several instances where other practices used our photos without authorization to promote their practices. Typically a call to the doctor with an alert that notification the Board if they are not removed suffices. It’s unethical and false advertising. We have had to fight google to remove a video where our photos were used, and it was a long, expensive process. Caveat – get proper consent from your gracious patients before posting anything. It should be considered permanent and irremovable. Thank you.

S.E.K
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S.E.K

I am an avid photographer, and studied copyright protection of my photographs. I agree with your assessment regarding ownership. I would also add that the creative process extends to post processing (Photoshop or other products). Each pic has “metadata” embedded in the jpeg. Most modern cameras give the photographer the option to put his/her name, copyright information, and other information in the metadata that travels with the pic. The exposure information, camera and lens information, and many other facts are also listed in the metadata. I suggest that everyone take the time to enter your name and enter that you… Read more »