Case 2:15-cv-05266-DRH-ARL Document 1 Filed 09/11/15 Page 1 of 11 PageID #: 1
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YOR.
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`FILED
`IN CLERK'S OPFICE
`U.S. DISTRICT COU~T E.O.N.Y.
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`MITCHELL A. POHL, an individual,
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`Plaintiff,
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`v.
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`DR. MICHAEL LAZAR, an individual,
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`DOES 1-5, unknown entities
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`Defendants
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`SEP 112015 *
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`LONG ISLAND OFFICE
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`CaseNCV 15
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`COMPLAINT AND JURY DEMAND
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`HURLEY, J.
`LINDSAY, M
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`COMPLAINT
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`Plaintiff Mitchell A. Pohl ("Pohl") sues Dr. Michael Lazar ("Lazar") and Does 1-5
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`("Does") for and states as follows:
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`INTRODUCTION
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`1. Plaintiff Mitchell A. Pohl brings this complaint against the named Defendant for
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`violations of his intellectual property rights under law. Defendant violated Plaintiffs rights by
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`using Plaintiffs copyrighted materials without his permission.
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`2. Plaintiff is a well-known and respected dentist in the Boca Raton and South Florida
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`regions, practicing restorative, cosmetic, and implant dentistry.
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`3. Plaintiff has attracted a geographically wide range of patients from Europe, Alaska,
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`Haiti, and more.
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`4. As advertising for his thriving practice, Plaintiff takes photographs of certain clients
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`before and after cosmetic dentistry in order to demonstrate, in his "Before and After" gallery, the
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`amazing results he provides.
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`5. Producing these photographs takes a great deal of creative skill, as Plaintiff must
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`determine the best angles, lighting, camera settings, among other things, in order to best showcase
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`his work in a tangible manner
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`6. In order to protect his works, Plaintiff registered his photographs with the
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`Copyright Office in 2005.
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`7. Plaintiff was surprised to discover that Defendant, another cosmetic
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`dentistry provider, had been using many of Plaintiffs copyrighted photographs on Defendant's
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`website without Plaintiffs knowledge or permission. The use was without attribution to Plaintiff
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`or acknowledgement that the photographs are protected by copyright. Instead, by including the
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`pictures on his website, without any other captions, Defendant seems to have been trying to pass
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`the photos off as results achieved at his own practice.
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`8. On information and belief, Defendant intentionally and knowingly copied and altered
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`Plaintiffs work, without attributing credit to Plaintiff, for the purpose of generating prestige and
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`financial benefit. Plaintiffs rights in his copyrighted work were violated when his work was used
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`without his consent.
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`STATEMENT OF JURISDICTION AND VENUE
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`9. This Court has jurisdiction over the Copyright Infringement claims alleged in this
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`action under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., and under this Court's federal
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`question jurisdiction, 28 U .S.C. § 1331, as an action that arises under the laws of the United
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`States, and under 28 U.S.C. § 1338(a) as a case arising under the Copyright Act. This Court also
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`has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332. There is diversity of
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`citizenship between the parties. This Court has jurisdiction over all other claims by virtue of 28
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`U.S.C. § 1338 and this Court's pendent jurisdiction. This Court has jurisdiction over all other
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`claims by virtue of28 U.S.C. § 1338(b).
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`10.
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`This Court has jurisdiction over Defendant pursuant to N.Y. CVP. LAW§ 301 by
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`virtue of the fact that Defendant is an individual operating a dentistry practice in the state ofNew
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`York, by its substantial, continuous activity of provision of dentistry and cosmetic services in the
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`state ofNew York, and by virtue of Defendant committing tortious acts within the state ofNew
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`York.
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`11.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1400(a) because the
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`Defendant resides in this District, and pursuant to 28 U.S.C. § 1391 because a substantial part of
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`events giving rise to the claims occurred in this District.
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`THE PARTIES
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`12.
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`Dr. Pohl practices dentistry, including restorative, cosmetic and implant dentistry
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`at 2900 N. Military Trail in Boca Raton, Florida, 33431.
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`13.
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`Plaintiff is informed and believes and thereon alleges that Defendant is an
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`individual, with a principal place of business is 800 Woodbury Road, Woodbury, New York
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`11797. Defendant is in the business of providing dental cosmetic dentistry services under the
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`business name Cosmetic Dentistry of Long Island.
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`FACTUAL BACKGROUND
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`14.
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`Plaintiff has spent years perfecting his craft, first attending NYU College of
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`Dentistry, then serving in the United States Air Force for 13 years, and finally teaching at the
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`Medical College of Virginia School of Dentistry before opening his own practice.
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`15.
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`Plaintiff was a member of many professional organizations, including the
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`American Academy of Cosmetic Dentistry, the Academy of General Dentistry, the American
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`Dental Association, the Florida Dental Association, and the South Palm Beach Dental
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`Association.
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`16.
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`Plaintiff was one of the early adopters of the porcelain veneer restoration, and
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`puts a great deal of time and attention to detail into each of his procedures, individually crafting
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`each tooth so it is customized to each patient.
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`17.
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`Plaintiff cares both about the aesthetics and health of his patient's teeth, helping
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`numerous patients avoid gum surgery and return their oral tissues to a disease-free state.
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`18.
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`Plaintiff operates websites, including bocaratoncosmeticdentist.com, to advertise
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`his cosmetic dentistry practice and provide information about Plaintiffs business and services to
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`potential and current patients.
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`19.
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`Plaintiffs website features many "Before and After" photographs, depicting
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`patients of Plaintiffs as demonstrative and comparison tools ofthe results achieved by Plaintiffs
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`dental practice.
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`20.
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`Dr. Mitchell Pohl created the photographs featured on Plaintiffs website,
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`creatively adjusting and arranging the camera, focus, angle, lighting, and subject to best capture
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`the results of his work.
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`21.
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`In creating the photographs, Plaintiff decided first to take both "Before" and
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`"After" photographs in order for prospective patients to be able to compare the teeth of the same
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`patient before Plaintiff treated him, and again after Plaintiff treated him. This would enable those
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`prospective patients to visualize the scope of the work Plaintiff undertakes as well as the
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`amazing results he is able to achieve.
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`22.
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`Plaintiff positioned the camera close to the mouth of each subject in order to focus
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`the photograph solely on the teeth of the subject, as the changes in the teeth are what the
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`photographs are meant to demonstrate. Plaintiff did not want any other parts of the face or body,
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`which would be potential distractions from the main subject, the teeth, in the photographs.
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`23.
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`Plaintiff usually positioned his subject's mouth in a natural smile position in order
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`to demonstrate how the subject would look with his old and new teeth in his everyday life,
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`smiling as he normally would. He also usually positioned the mouth in this natural smile position
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`in both the "Before" and "After" photograph so that potential patients could recognize the
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`significant changes in the quality of the teeth without being distracted by other changes in the
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`subject's appearance that could result if the subject posed differently in each photograph.
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`Occasionally, Plaintiff would position the subject's mouth wider if there was more significant
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`damage to the teeth and a more thorough surgery was required, in order to demonstrate the full
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`extent of the surgery he performed.
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`24.
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`Plaintiff used lighting bright enough to demonstrate the quality- and sometimes
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`decay - of teeth in the "Before" photographs in order to demonstrate subsequent positive effects
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`in the "After" photographs. Likewise, he wanted to use lighting bright enough to clearly show
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`every detail of the teeth in the "After" photographs in order to showcase work quality. However,
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`he also had to make sure the lighting was not too bright, so that it did not compete with the white
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`color of the teeth and wash the photographs out.
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`25.
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`In November 2005, Plaintiff applied for copyright registration for the images
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`featured on the website with the United States Copyright Office.
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`26.
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`Dr. Pohl was granted a copyright registration for these images, which are titled
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`"Boca Raton cosmetic dentist." (hereinafter "the Work"). A true and accurate copy of the
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`copyrighted registration, TX 6-210-837 is attached hereto as Exhibit #1. As demonstrated, the
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`copyrighted work constitutes an original work of authorship.
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`27.
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`Dr. Pohl discovered that ten photographs contained in the Copyrighted Work were
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`displayed on the websites www.cosmeticdentistryoflongisland.com (in the "Before and After"
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`gallery) without his consent or authorization, and such images remained on Defendant's website
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`through August of 2012.
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`28.
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`On information and belief, one set of pictures from the "Adult Reconstructive
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`Orthodontics" section of the "Before and After" page of Plaintiffs website (Exhibit #2) was
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`copied exactly on Defendant's website on an unknown date, and remained on Defendant's
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`website through August of2012.
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`29.
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`On information and belief, four sets of"Before and After" pictures from the
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`"Porcelain veneers: An alternative to crowns" page of Plaintiffs website (Exhibit #3) were
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`copied exactly on Defendant's website on an unknown date, and remained on Defendant's
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`website through August of 2012.
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`30.
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`Among other things, Defendant's website falsely represented the photographs to
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`be before and after pictures of Defendant's own work and services. Nowhere on its site does
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`Defendant attribute ownership of the pictures to Plaintiff; instead, Defendant's use of the pictures
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`in the "Before and After" section of Defendant's website indicates that the Defendant was
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`attempting to pass the pictures off as his own work. In fact, at the top of Defendant's "Before and
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`After" page, the text reads "Click on any of the images below to see a larger sample of cosmetic
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`dentistry that was performed by our office" [italics added]. True and correct copies of snapshots
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`from the Defendant's website showing the infringing photographs are attached hereto as Exhibit
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`#4 (the "Infringing Work").
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`31.
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`As a direct and proximate cause of Defendant's wrongful action, Plaintiff has
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`suffered damages in an amount to be determined at trial.
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`CAUSES OF ACTION
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`32.
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`Plaintiff seeks redress as a result of Defendant's actions, as follows:
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`Count One: Direct Copyright Infringement against Defendant
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`33.
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`Plaintiff incorporates each of the foregoing allegations as if fully set forth herein.
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`34.
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`Defendant is liable to Plaintiff for infringement of the copyrighted work subject to
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`17 U.S.C. §§ 101 et seq. (the "Copyright Act").
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`35.
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`Plaintiff is the owner of the registered copyright set forth in Exhibit #1, which
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`constitutes an original work of authorship.
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`36.
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`Defendant has infringed Plaintiffs copyrighted work by unlawfully copying
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`entire portions of the work, or, alternatively, constituent elements of the work, and displaying
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`and presenting them in his advertisements and on his websites, presumably for profit.
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`37.
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`Plaintiff did not authorize, permit or consent to Defendant's distribution of the
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`Work.
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`38.
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`Plaintiffbelieves and thereon alleges that the foregoing acts of infringement by
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`Defendant have been willful, intentional and purposeful, in disregard of, and indifferent to,
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`Plaintiffs rights.
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`39. Wherefore, Plaintiff seeks damages under 17 U.S.C. § 504 and injunctive relief
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`under 17 U.S.C. § 502.
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`Count Two: Contributory Copyright Infringement against Defendant
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`40.
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`Plaintiff incorporates each of the foregoing allegations as if fully set forth herein.
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`41.
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`Prior jurisprudence explains that "one infringes contributorily by intentionally
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`inducing or encouraging direct infringement." 1 Furthermore, an individual may be infringing
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`1 See MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913,930 (U.S. 2005) (citing Gershwin Pub. Corp. v. Columbia
`Artists Management, Inc., 443 F.2d 1159, 1162 (CA2 1971).
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`"vicariously by profiting from direct infringement while declining to exercise a right to stop or
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`limit it."
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`42.
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`Even where Defendant did not directly copy the Work, Defendant had the
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`opportunity to stop or limit the publication of the Work. Defendant knew, or should have known,
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`that the Work was being published to numerous third parties in furtherance of the Defendant's
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`attempt to attract clients to his business.
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`43. Wherefore, Plaintiff seeks damages under 17 U.S.C. § 504 and injunctive relief
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`under 17 U.S.C. §502.
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`Count Three: Provision of False Copyright Management Information and
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`Removal or Alteration of Copyright Management Information
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`Plaintiff incorporates each of the foregoing allegations as if fully set forth herein.
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`As described herein, Defendant unlawfully copied and distributed all or
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`44.
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`45.
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`constituent elements of Plaintiffs copyrighted work on Defendant's website under text saying
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`"Click on any of the images below to see a larger sample of cosmetic dentistry that was
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`performed by our office," therefore falsely attributing authorship and ownership of the
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`photographs and their copyright to Defendant.
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`46.
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`In doing so, Defendant has knowingly and with the intent to induce, enable,
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`facilitate, or conceal infringement provided copyright management information that is false, in
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`violation of 17 U.S.C. § 1202(a).
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`47.
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`As described herein, Defendant unlawfully copied and distributed all or
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`constituent elements of Plaintiffs copyrighted work on Defendant's website without including
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`Plaintiffs name or other identifying information, the title or other identifying information of
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`Plaintiff's copyrighted work, or even the fact that Plaintiff's work is copyrighted, therefore
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`seemingly attempting to pass the work off as Defendant's own.
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`48.
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`In so doing, Defendant has, without the authority of the copyright owner or the
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`law, distributed works or copies of works knowing that copyright management information had
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`been removed or altered without the authority of the copyright owner or the law, knowing or
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`having reasonable grounds to know that it will induce, enable, facilitate, or conceal an
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`infringement of any right under 17 U.S.C. § 1202, in violation of 17 U.S.C. § 1202(b).
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`49.
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`On information and belief, Defendant's provision of false copyright management
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`information, as well as Defendant's removal and alteration of Plaintiff's copyright information,
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`was willful and intentional, and was committed with reckless disregard for, and with deliberate
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`indifference to, the rights of Plaintiff.
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`50. Wherefore, Plaintiff seeks damages under 17 U.S.C. § 1203 and injunctive relief.
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`Count Four: Violation of Visual Artists Rights Act of 1990
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`51.
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`52.
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`53.
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`Plaintiff incorporates each of the foregoing allegations as if fully set forth herein.
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`Plaintiff's copyrighted work is photographs, which is visual art.
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`On information and belief and as described herein, Defendant unlawfully and
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`intentionally distorted and modified Plaintiff's copyrighted work, of which he is both author and
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`owner, by using it in advertising and posting it on Defendant's website as if it were Defendant's
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`own work.
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`54.
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`On information and belief, this distortion and modification of Plaintiff's
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`copyrighted work by Defendant is prejudicial to Plaintiff's hard-earned reputation because it
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`suggests that Defendant, not Plaintiff, performed the cosmetic dentistry and achieved the
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`amazing results depicted in the images.
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`55.
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`Pursuant to 17 U.S.C. § 106A, Plaintiff has the right to prevent the above-
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`mentioned distortion and modification of his copyrighted work by Defendant.
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`56.
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`Plaintiff has not expressly waived his right to prevent the above-mentioned
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`distortion and modification of his copyrighted work by Defendant.
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`57. Wherefore, Plaintiff seeks damages and injunctive relief.
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`PRAYER FOR RELIEF
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`Wherefore, Plaintiff seeks the following relief:
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`58.
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`Pursuant to 17 U.S.C. §§ 504 and 1203, an award for damages, under, in an
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`amount to be proven at trial, in an amount not less than $75,001;
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`59.
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`Pursuant to 17 U.S.C. §§ 504 and 1203, an award of all economic, monetary,
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`actual, consequential, statutory and compensatory damages caused by Defendant's conduct, and
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`if his conduct is proven willful, award Plaintiff exemplary damages;
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`60.
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`Pursuant to 17 U.S.C. § 504(b), disgorgement or restitution by Defendant of all
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`revenue earned from the fraudulent and unlawful practices described herein;
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`61.
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`62.
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`An award of punitive damages, in an amount to be proven at trial;
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`An award of injunctive and other equitable relief, pursuant to 17 U.S.C. § 502, or
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`as otherwise available, to protect the interests of Plaintiff, including an order prohibiting
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`Defendant from engaging in the wrongful and unlawful acts described herein;
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`63.
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`Pursuant to 17 U.S.C. § 505, an award to Plaintiff of his reasonable litigation
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`expenses and attorneys' fees;
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`64.
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`An award to Plaintiff of pre-judgment and post-judgment interest, to the extent
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`allowable; and
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`65.
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`Such further relief as this Court may deem just and proper.
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`Plaintiff respectfully demands a trial by jury with respect to each claim in this Complaint.
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`JURY TRIAL DEMANDD
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`Respectfully submitted,
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`Eric Menhart, Esq.*
`316 F Street NE Suite 101
`Washington, DC 20002
`Phone: (855) 453-9376 x 101
`Fax: (855) 453-9376
`* Pending Admission Pro Hac Vice
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