Sharee Brown’s plastic surgeon outed her nose to the entire world.
Now she’s suing him for $15 million.
Any true aspiring actress plans for the day when her face will start showing up in glossy magazines. Leafing through an issue of Essence during her lunch hour one day back in August 1998, however, Sharee Brown must have been a little surprised to see that she’d finally made it. Staring back at her on Page 26 were photos of her own face.
The story, alas, wasn’t about Brown’s starring role on some hot new sitcom. Rather, it was a feature about the pros and cons of plastic surgery for African-American women. Brown—who had long since joined the ranks of D.C.’s professional office class—had posed for the photos nine years earlier in the office of D.C. plastic surgeon Steven Hopping.
Back in 1989, Hopping performed a nose job and eyelid surgery on Brown. And it looks as if he did a good job: Her “after” face is lovely in the photo. But what’s attached to it isn’t quite so nice. Essence editors positioned Brown’s new face directly above someone else’s naked body—the photo of a large women before both breast reduction and tummy-tuck surgeries.
Neither Essence nor Hopping had ever contacted Brown about using the pictures, and she was horrified. She quickly bought up all the copies of the magazine she could find, going to several newsstands and spending several hundred dollars to try to keep them out of circulation, according to a source close to the case. But Essence has a circulation of over a million, and before long Brown started getting phone calls from friends, who she claims weren’t aware that she’d had a nose job. They wanted to know if the naked photos were of her, too, according to her affidavit filed in D.C. Superior Court.
The questions were more than Brown could take. Claiming that she has been “held up to public scorn, oblique [sic], derision, contempt and loss of reputation,” Brown filed suit last year against Essence and Hopping for $15 million for invasion of privacy, breach of fiduciary duty, negligence, unlawful appropriation of her likeness, and portraying her in a false light.
“Not a day goes by without my feeling self-conscious about this publication,” Brown said in the affidavit.
Through lawyer Hubert Schlosberg, Brown declined to be interviewed for this story. When contacted by the Washington City Paper, Schlosberg said he had hoped the lawsuit would slip through the court system without further publicity. But, he said, Brown pressed forward in spite of the risk of further exposure because Hopping’s behavior “violated the rule of patient-doctor confidentiality, which must be based on trust and mutual respect. She was hurt to the core—hurt, embarrassed, and humiliated that her doctor would betray her. She felt violated.”
According to the court records, Brown (then Sharee Presson) was 18 and living with her parents when she first consulted Hopping. Then an aspiring actress, Brown apparently mentioned to Hopping that she had hoped to be on The Cosby Show, and that she had been on video shows with Donnie Simpson, according to court records. She wanted to have better-sculpted upper eyelids and a more refined, narrow nose to improve her chances on screen.
Prior to her surgery, Brown had signed a release form authorizing Hopping and his staff to take photos before, during, and after surgery, and to use them for medical records and publication in “professional journals or medical books or used for purposes which may be in the interest of education, knowledge or research,” according to records in the court file.
Schlosberg has argued in court that the release applied only to the use of photos in professional publications like medical journals. Hopping did not return a call for comment. Essence editors declined through their lawyer to comment on the case, but they have pinned much of the blame on Hopping.
In an affidavit filed in the case last year, an Essence editor, Monique Greenwood, said she had specifically asked Hopping for photos from someone who had consented, and had no reason to believe he would send her unauthorized material. Essence lawyers have also argued that because the publication acquired the photos legally, they are protected from lawsuits by the First Amendment.
The magazine’s lawyers also argued that claiming a nose job is a private procedure is like saying highway billboards are confidential communications. In a court brief, Essence says, “The remodeling of Ms. Brown’s nose by her plastic surgeon is a fact ‘already in the public domain,’ for there is no more public part of the human body than the face.” Nonetheless, Judge Joan Zeldon ruled this summer that the release form was sufficiently vague and that Brown had a case.
You’d think that with the proliferation of plastic surgery ads, doctors would get sued all the time for publishing those gruesome before-and-after profiles of cellulite and bulbous noses. But Seattle surgeon Wallace Chang, chair of the American Society of Plastic and Reconstructive Surgeons’ ethics committee, says that cases like Brown’s are actually fairly rare, because the photos surgeons use to promote their services are frequently bogus. They use either models who’ve never had cosmetic surgery or attractive patients who had their work done by someone else, says Chang.
But Hopping isn’t the first local cosmetic surgeon to get whacked by a patient for outing her manufactured beauty, and the precedent bodes well for Brown. In 1979, surgeon Csaba Magassy used photos of patient Mary Vassilliades in a “Creams Versus Plastic Surgery” program at the now-defunct Garfinkel’s department store. The photos also appeared in a brief TV spot on Channel 5.
A middle-aged housewife on whom Magassy had performed a face lift, Vassilliades sued both the store and the surgeon, alleging that her privacy had been invaded and that her face had been used for commercial gain without her permission. A D.C. Superior Court jury ruled in Vassilliades’ favor, and the D.C. Court of Appeals upheld the $100,000 verdict against Magassy. The department store ultimately got off, however, on the grounds that it had received oral assurances from Magassy that the photos were safe to use.
Local media lawyer Bruce Sanford says that 20 years ago, Essence would similarly have breezed out of Brown’s suit with its First Amendment claims, but juries and judges have become much less sympathetic of the media since then. “Those graphic display things tend to disturb juries,” he adds. (Full disclosure: Sanford occasionally represents the City Paper in legal matters.)
Sanford thinks there is a remote possibility that Brown’s case could go the way of Dustin Hoffman’s recent suit against Los Angeles Magazine. Last year, a federal judge ordered the magazine to pay Hoffman $3 million for publishing an unauthorized, computer-altered photo of him portraying the movie character “Tootsie” but wearing a designer dress.
The photo had been used in a fashion spread, and Los Angeles Magazine argued that the use of the photo was protected under the First Amendment, but the judge ruled that the magazine had exploited Hoffman’s name for commercial gain. Brown’s lawyers cite the Hoffman case in their arguments that both Essence and Hopping used Brown’s face for commercial purposes—an allegation both have denied.
As for the unfortunate positioning of Brown’s face, though, Sanford thinks Brown’s “false light” claim may be a stretch, saying that the attachment of Brown’s head to someone else’s naked body sounds more like a poor editorial placement rather than an intentional portrayal. He suspects that Brown’s case may be one where “the jury socks the surgeon and lets the publisher off.”
Indeed, even Hopping’s colleagues in the medical profession find his recent actions questionable. Chang says that long ago, surgeons did use release forms like the one Brown signed, but they were only to allow doctors to use photos for medical teaching and professional conferences. He says the photos of Brown constitute part of her medical records, which are not supposed to be released under any other circumstances. “It’s so basic,” he says. Giving out Brown’s photos for commercial use, says Chang, “is definitely in violation of our code of ethics.” CP