The proboscis files
Steve Denenberg, 58, is an unassuming Midwestern guy. Unless you’ve been in the market for a nose job, you’ve almost certainly never heard of him. He grew up in Omaha, and after graduating from Harvard and doing a medical residency at Stanford, he returned home to open a practice as a plastic surgeon 29 years ago. He married late — to another Omahan — and has five kids under 11. He drives an ’05 Honda Pilot; he takes bridge lessons three times a month; he subscribes to Sky & Telescope; and he really gets Playboy for the articles. After discovering the Chinese domino game pai gow in Las Vegas, he spent years writing a 600-page treatise on the topic. When he’s exasperated — like by his engaging parents, who live just around the corner in the house he grew up in — the most he says is the Yiddishism, “Oy vey ist mir!”
So this is probably not the fellow you’d expect to be leading a crusade. But Steven M. Denenberg, MD, may be the most important plastic surgeon between Hollywood and Manhattan’s Upper East Side. For the past decade he has been waging an intellectual-property fight against the worst kind of nose job — that is, the misappropriation of his patients’ online before-and-after photos. Denenberg’s tale is about the astonishing reach of the web for a small business and the ease with which scoundrels can take advantage. It’s also a pretty funny story.
Denenberg, a tech-savvy fellow, in 1996 set up his own website, facialsurgery.com. The website, he says, was the first to post before-and-after photographs of cosmetic procedures, including nose jobs — or rhinoplasties, as doctors have called them since the early 19th century. Side by side, in color, you can see Denenberg’s work to correct a bulbous round tip, a hump along the bridge, or a nose that was too long, too wide, too droopy, or, of course, just too big. (Plastic surgeons don’t say they’re “too big” — they say “projecting,” as in “Pinocchio had a progressively projecting nose.”) Denenberg, with the permission of patients, has posted 1,008 pairs of before-and-after photos on the website — face-lifts, brow-lifts, eyelid enhancements, chin implants, and ear pinning, along with rhinoplasties. While such online entrepreneurship might seem commonplace now, many plastic surgeons still don’t post photos. The reasons range from not wanting to seem overly commercial to not having impressive results.
In any case, because of his web presence, Denenberg achieved professional prominence well beyond Omaha — what he calls “the most inconveniently located city in America.” Over the past 17 years, prospective patients have come to see him from 56 countries, from as far away as Helsinki and Johannesburg. One time a woman from Australia arrived at the office for a consultation, commenting, “You probably don’t see many patients from where I’m from.” Denenberg replied, “I operated on one just a few days ago — she’s back at the hotel recuperating.” He’s done more than 1,000 rhinoplasties (about a quarter of them on men); he has a tiny niche in noses of transgenders looking for a more feminine look. Denenberg says his website gets 5,000 page downloads a day; his self-designed mobile app, Facial Plastic Surgery: Before and Afters, gets another 500 daily hits. More than half of his business comes from out-of-towners who learn about him online.
One day in 2003 he found out his before-and-afters were being used by a London doctor claiming the surgical work as his own. Denenberg’s discovery was serendipitous. The London doctor allegedly showed before-and-after photos to a prospective patient, claiming them as his own. The patient recognized the images from Denenberg’s website, and she called him to ask what was going on. “I couldn’t believe it,” Denenberg recalls. “This guy had no website and figured he was safe in using the photos of my patients. It was an issue of honesty — him misrepresenting himself — and an issue of theft.” Denenberg’s mother, Eunice, had her nose out of joint too. “I saw all the blood and sweat he put into the website,” she says. “I was happy to see Steven standing up for himself.” (She’s such a proud mom she’s had him do her eyelids.)
Curious to see if the London doctor was a marker, Denenberg started nosing around the web. In time, Google’s Search by Image has made the hunt more efficient. He still can’t believe what he came across — on websites from Israel to India, Canada to Jordan. During the past decade, he’s located photographs of his rhinoplasty patients on the websites of other surgeons, and of his “skin peeling” patients in both the promotional materials of a manufacturer of an anti-aging lamp and the purveyors of skin creams. The photo of one rhinoplasty patient, whose real name is Kristina, appeared as “Annie” and as “Megan L.” on the respective websites of two different L.A. surgeons, Robert Ruder and George Boris. Denenberg even found four of his before images posted by a “forum member” on stormfront.org, a white supremacist web forum; the images were cited as examples of “Jewish noses.”
Robbers do bank jobs. As far as Denenberg was concerned, he was the victim of thievery — a nose job by another name.
Until he learned his work was being ripped off, about the most exciting thing that had happened in Denenberg’s practice was when a Texan man brought in a suitcase of $12,000 to pay for his wife’s multiple facial-rejuvenation procedures. “You take cash, right?” the man asked. “No, a check’ll be fine,” Denenberg answered. Then there was the time he had two patients in the office at the same time — a man and a woman who had had eyelid surgery the prior day. The man, having reviewed post-op instructions, asked, “Now I can’t have sex for two weeks, right?”(to make sure his blood pressure didn’t rise unduly). Reviewing the same instructions, the woman asked, “Now I don’t have to have sex for two weeks, right?” Denenberg, who looks like a happy Larry David, has these and 100 other stories that he can tell unless his wife, Tippi, tells them first.
But it’s the photos he’s obsessed with. Denenberg — who has an everyday nose that projects perfectly from his mostly hairless head — is out to punish those who he says have appropriated his photography. His collaborator: Norman Denenberg, attorney at law, practicing at the same office on the main drag in Omaha since the Carter administration. Norman is Steve’s 88-year-old dad. Before entering private practice, he was a county prosecutor. Fifty-seven years ago he put a man on death row. “He cut up his ex-wife with a boning knife,” Norman explains, deadpan. “What he’s leaving out is that he was supposed to be executed on my second birthday,” Steve adds, for reasons that are entirely unclear. The man never went to the electric chair, because Norman persuaded the governor at the last minute to commute the sentence to life because the defense lawyer did a lousy job, even missing the deadline for filing an appeal.
Norman is now a grandfather out of central casting: blue-eyed, folksy, quick, wry. His law office is decorated with memorabilia from his time as a Navy pilot during World War II; art from trips to Zimbabwe; a hanging brass hoopoe by the wide front window; a giant standing wooden Philco radio; and in the reception area old oak pews from a church. In the walls remain three bullet holes from shots fired at one of Norman’s former law partners by an unhinged client. You can sometimes find “Normano” — as Steve calls him because his young kids do — tooling around town with his wife, Eunice, in the red ’71 Buick GS convertible he bought her new for $3,800. Eunice was a close friend of Susie Buffett’s, the late first wife of Warren Buffett, the first citizen of Omaha.
Steve and Norman often seem as much a very familiar Archie-and-Edith couple as father and son. They interrupt each other; they correct each other; they seem to like to compete. “Let me tell you what happened on this case,” Norman offers as he fills in details about the London doctor. “Let me tell him!” Steve breaks in. Norman stands firm. “No, you talk too much anyway!” he scolds. The by-play is as good as the actual story. But the familial exchange — in Norman’s office or at dinner or with the grandchildren gathered round — is always good-natured, never mean. At times, their alliance appears less a legal calling than an unusual way to spend family time. “When he’s off with his dad,” Tippi says, “I sometimes think he should be home rubbing my feet instead. But we live in a world full of morally grotesque people, and I’m glad he and his father are trying to do something about it. And I love seeing them spend time with each other.”
Together, the son and father have built a little cottage industry by keeping their noses to the grindstone. Since 2003 they’ve brought, or threatened to bring, 10 federal lawsuits against surgeons or companies using Denenberg’s photographs. Other cases never materialized because of jurisdictional issues, companies going bankrupt, or technicalities involving foreign law like British lawyers not being allowed to work on contingency.
Denenberg’s preferred legal cause of action is copyright infringement, since photographs are clearly entitled to copyright protection and Denenberg took the photos (in a studio that’s part of his office). Copyright law makes for a potent weapon. Better than a false-advertising claim, it allows substantial damages against infringers, and on occasion makes infringers pay the winner’s legal fees. As a result, even though no Denenberg copyright case has ever made it all the way to a verdict, the Denenbergs have had substantial leverage with which to obtain settlements.
One surgeon, Ruder — whose “Annie” before-and-after was Denenberg’s Kristina — had to pay through the nose in a sealed settlement a few years back. When reached by Fortune, Ruder said, “I give my surgical slides to everyone. I was shocked that anybody felt that helping patients see what can be done surgically wasn’t legal.” Boris, the surgeon whose website showed Kristina as “Megan L.,” didn’t return calls from Fortune. According to Denenberg, Boris settled with him for an undisclosed amount. In court papers Boris denied committing copyright infringement.
The Denenbergs didn’t go after the London doctor, the first person Steve found using the photos, because it’s difficult to sue abroad. But when a second woman in 2005 emailed him with the same story about the London doctor showing her Steve’s before-and-after images as his own, the Denenbergs filed a complaint with the British licensing board. It investigated but took no action, in part because the doctor denied the charges. The website of the independent regulator for doctors in the U.K. — the General Medical Council — indicates he hasn’t been practicing since 2010, and Fortune couldn’t locate him. The Denenbergs also didn’t take action against the white-supremacy website, where his photography is still posted.
Most of those doctors or companies formally pursued by the Denenbergs assert the same defense: We didn’t know about the unauthorized use of any photos. In court papers and in legal correspondence with the Denenbergs, they say they hired web designers, ad agencies, or other professionals presumably equipped to legally obtain before-and-after images. That’s the legal tack both Ruder and Boris took. For purposes of copyright law, to the extent the doctors didn’t realize that photography obtained by third parties like web designers still belonged to Denenberg, the doctors are off the hook for draconian copyright damages that could have amounted to $150,000 per infringement. The ignorance defense doesn’t sit well with Steve Denenberg, who says it doesn’t address the problem of doctors passing off his work as their own. “By using my photographs,” he says, “doctors are deceiving patients by claiming skills they don’t possess. There’s no informed consent.”
While some of the settlements Steve Denenberg has gotten are subject to confidentiality agreements, he says he’s recovered about a third of $1 million all told — and his photographs have been taken down from offending websites. But he says he’s not in it for the money, most of which goes to his father anyway. Operating on average three days a week, 40 weeks a year, Steve takes in about $800,000 annually, half of which goes to office staff and other expenses. To make sure patients really want the knife and understand the risks, he spends part of every consultation in effect trying to talk patients out of surgery. He says he succeeds 50% of the time. “There’s a principle at stake,” Norman Denenberg says. “You don’t want people out there profiting off of Steve’s artistic work and receiving no consequences for it.”
Steve Denenberg sees himself on a small mission for his chosen specialty. He knows about how plastic surgeons get a bad name by putting up ads on giant billboards and in subway cars. “Rhinoplasties are not commodities,” he says. “They’re by far the most complicated procedure to do well. More than 90% of plastic surgeons get bad results — which means a patient crying inconsolably in front of a mirror.” In other words, it’s a matter of saving face.
This story is from the October 28, 2013 issue of Fortune.