{"id":2712,"date":"2019-04-01T20:00:40","date_gmt":"2019-04-01T20:00:40","guid":{"rendered":"http:\/\/www.dekuzu.com\/en\/?p=2712"},"modified":"2020-02-18T16:48:54","modified_gmt":"2020-02-18T16:48:54","slug":"dental-smile-copyright","status":"publish","type":"post","link":"https:\/\/www.dekuzu.com\/en\/2019\/04\/dental-smile-copyright.html","title":{"rendered":"Dental smile copyright"},"content":{"rendered":"\n
\"\"<\/figure><\/div>\n\n\n\n

This is a case about alleged copyright infringement of photographs of teeth.<\/span><\/p>\n

<\/span><\/p>\n

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\u2019s website. He takes these photos to promote his skills in the field of cosmetic dentistry. One pair of photographs displays his patient Belinda\u2019s teeth. Pohl took these photos in the fall of 2004. The photos consist of two direct shots of the patient\u2019s teeth \u2013 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.<\/span><\/p>\n

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 \u201cText and Photographs;\u201d a handwritten \u201cWeb Site\u201d also appears in the space identifying the nature of the authorship. The application identified the work\u2019s 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.<\/span><\/p>\n

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\u2019s toothy visage smiled back at him \u2013 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<\/a> against Officite for copyright infringement.<\/span><\/p>\n

Officite first attempted to limit the scope of Pohl\u2019s 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\u2019s completion in 2000 and November 20, 2000 as the date of its first publication, then 2000 is the correct year for the copyright\u2019s scope. Because Pohl took the before-and-after shots of Belinda\u2019s chompers in 2004, the copyright cannot cover them \u2013 or so Officite argues.<\/span><\/p>\n

Pohl explained that he mistakenly identified 2000 as the year of the work\u2019s completion and mistakenly identified November 20, 2000 as the date of the photos\u2019 first publication. He erroneously interpreted the copyright registration form to direct him to add the date of his website\u2019s creation and first publication \u2013 not the date of the photographs\u2019 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.<\/span><\/p>\n

Pohl entered an erroneous date on the copyright registration form. But he claimed to have deposited materials that include the materials Officite was \u201ccaught\u201d using. The Court noted that Pohl\u2019s deposited materials \u2013 the DVD or CD that contained the website as it existed in 2005 \u2013 were not in the record. And a jury may find Pohl\u2019s self-serving testimony to be as persuasive as plaque is useful to molars. Even so, Pohl\u2019s testimony is sufficient to create a genuine issue of material fact; namely, whether he deposited the 2005 website, including the photos of patient Belinda\u2019s teeth, to the Register of Copyrights.<\/span><\/p>\n

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. \u201cOnce the plaintiff produces a certificate of registration, the burden shifts to the defendant to establish that \u2018the work in which copyright is claimed is unprotectable (for lack of originality)\u201d. Officite has met that burden.<\/span><\/p>\n

Meeting the standard for creativity is not like pulling teeth. \u201cThe requisite level of creativity is extremely low; even a slight amount will suffice,\u201d the Supreme Court has explained. \u201cThe vast majority of works make the grade quite easily, as they possess some creative spark, no matter how \u2018crude, humble, or obvious\u2019 it might be.\u201d \u201cEven the slightest artistic touch will meet the originality test for a photograph.\u201d Low as this bar is, Pohl\u2019s before-and-after photos of Belinda\u2019s incisors and canines fail to meet it.<\/span><\/p>\n

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. \u201cDescriptive pictures presenting the types of pet beds available for sale\u201d not likely to be copyrightable; \u201cphotographs of computers and computer components served utilitarian and descriptive purposes are \u201cnot sufficiently original to be protected by copyright law\u201d;  \u201cphotographs of aftermarket motorcycle lighting accessories \u201cwere meant to serve the purely utilitarian purpose of displaying examples of its products to potential customers, and do not merit copyright protection\u201d; \u201cgeneric photos of Chinese food served a utilitarian purpose and were not creative\u201d.<\/span><\/p>\n

Pohl argued that \u201che was responsible for, inter alia, selecting the camera, posing the subject matter, and determining the lighting and photo angle before taking the photographs\u201d. Pohl\u2019s described process involves no \u201ccreative spark.\u201d 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 \u201cmoving the camera in and out until I get it in focus,\u201d \u2013 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\u2019s services.<\/span><\/p>\n

There is nothing creative about taking close-up photographs of teeth. Plaintiff\u2019s motion for partial summary judgment has been denied<\/a>.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

This is a case about alleged copyright infringement of photographs of teeth.<\/p>\n

Continue readingDental smile copyright<\/span><\/a><\/div>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6,5,4,17,19],"tags":[],"class_list":["post-2712","post","type-post","status-publish","format-standard","hentry","category-intellectual-property","category-copyright","category-internet","category-litigation","category-works-similarity","entry"],"_links":{"self":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts\/2712","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/comments?post=2712"}],"version-history":[{"count":6,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts\/2712\/revisions"}],"predecessor-version":[{"id":3157,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts\/2712\/revisions\/3157"}],"wp:attachment":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/media?parent=2712"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/categories?post=2712"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/tags?post=2712"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}