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 Dastarbarred 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…

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