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Dental smile copyright

This is a case about alleged copyright infringement of photographs of teeth.

Dr. Mitchell A. Pohl is a practicing dentist in Boca Raton, Florida. Starting around the year 2000, Pohl began taking before-and-after photographs of his cosmetic dental work for his practice’s website. He takes these photos to promote his skills in the field of cosmetic dentistry. One pair of photographs displays his patient Belinda’s teeth. Pohl took these photos in the fall of 2004. The photos consist of two direct shots of the patient’s teeth – one before the dental work and the other after the dental work. The patient is revealing her teeth and, in both shots, the photo consists of her teeth, her lips, and a small area around the mouth.

In November 2005, Pohl prepared and filed an application for a copyright. The Register of Copyrights issued TX 6-201-837 with an effective date of November 28, 2005. On the application, the nature of the authorship was identified as “Text and Photographs;” a handwritten “Web Site” also appears in the space identifying the nature of the authorship. The application identified the work’s completion in 2000 and November 20, 2000 as the date of its first publication. In 2014, Pohl applied for a Supplementary Registration, which the Register of Copyrights issued as TX 6-484-589. The purpose of the Supplementary Registration was to limit the copyright to only the photographs.

In April 2016, Pohl performed a reverse-image search on Google of the before-and-after photos of patient Belinda. In doing so, Pohl claims to have discovered seven websites on which Belinda’s toothy visage smiled back at him – seven websites that were not his own. All seven websites allegedly identified Officite as the designer or developer. Rather than brush off this discovery, Pohl, through his attorney, sent a letter to Officite demanding that it cease and desist using these photographs on the discovered websites. By June 2016, the photographs were no longer on the seven websites. Pohl filed suit against Officite for copyright infringement.

Officite first attempted to limit the scope of Pohl’s 2005 copyright to only his website as it appeared in 2000, rendering the copyright toothless as to the 2004 photos. Officite reasons that because the copyright registration identified the work’s completion in 2000 and November 20, 2000 as the date of its first publication, then 2000 is the correct year for the copyright’s scope. Because Pohl took the before-and-after shots of Belinda’s chompers in 2004, the copyright cannot cover them – or so Officite argues.

Pohl explained that he mistakenly identified 2000 as the year of the work’s completion and mistakenly identified November 20, 2000 as the date of the photos’ first publication. He erroneously interpreted the copyright registration form to direct him to add the date of his website’s creation and first publication – not the date of the photographs’ creation and first publication. He stated that he should have entered 2005 as the year the work was completed and November 21, 2005 as the date of first publication. Pohl also claimed that he deposited materials concurrent with the copyright application that exhibited the website as it existed in 2005.

Pohl entered an erroneous date on the copyright registration form. But he claimed to have deposited materials that include the materials Officite was “caught” using. The Court noted that Pohl’s deposited materials – the DVD or CD that contained the website as it existed in 2005 – were not in the record. And a jury may find Pohl’s self-serving testimony to be as persuasive as plaque is useful to molars. Even so, Pohl’s testimony is sufficient to create a genuine issue of material fact; namely, whether he deposited the 2005 website, including the photos of patient Belinda’s teeth, to the Register of Copyrights.

Even though the deposited materials may have included the before-and-after photos, they are not copyrightable because no reasonable jury could find the photos are sufficiently creative or original to receive copyright protection. “Once the plaintiff produces a certificate of registration, the burden shifts to the defendant to establish that ‘the work in which copyright is claimed is unprotectable (for lack of originality)”. Officite has met that burden.

Meeting the standard for creativity is not like pulling teeth. “The requisite level of creativity is extremely low; even a slight amount will suffice,” the Supreme Court has explained. “The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how ‘crude, humble, or obvious’ it might be.” “Even the slightest artistic touch will meet the originality test for a photograph.” Low as this bar is, Pohl’s before-and-after photos of Belinda’s incisors and canines fail to meet it.

Rather, this Court finds that the photos fall into a class of photographs that federal courts throughout the United States have found to be devoid of creativity or originality. “Descriptive pictures presenting the types of pet beds available for sale” not likely to be copyrightable; “photographs of computers and computer components served utilitarian and descriptive purposes are “not sufficiently original to be protected by copyright law”;  “photographs of aftermarket motorcycle lighting accessories “were meant to serve the purely utilitarian purpose of displaying examples of its products to potential customers, and do not merit copyright protection”; “generic photos of Chinese food served a utilitarian purpose and were not creative”.

Pohl argued that “he was responsible for, inter alia, selecting the camera, posing the subject matter, and determining the lighting and photo angle before taking the photographs”. Pohl’s described process involves no “creative spark.” As for lighting, there is no creativity in merely having sufficient lighting in the room where Pohl took the photographs. He offers no evidence regarding the shading or lighting of the photographs. The photo angle involved Pohl “moving the camera in and out until I get it in focus,” – the most rudimentary and basic task for photographers since the era of the daguerreotype. The whole process took no more than five minutes. The photographs serve the purely utilitarian purpose of advertising Pohl’s services.

There is nothing creative about taking close-up photographs of teeth. Plaintiff’s motion for partial summary judgment has been denied.

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