Show me your teeth: dentist's before-and-after closeups aren't copyrightable for want of originality

Pohl v. MH Sub I, LLC, No. 4:17cv181-MW/CAS (N.D. Fla. Jun. 20, 2018)

H/T Daniel Kegan. Dr. Pohl took before-and-after photographs of his cosmetic dental work for his Florida cosmetic dentistry practice’s website. He took such photos of “Belinda” in 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.”  

the photos at issue

He sued defendants for designing/developing seven websites on which the images appeared without his permission.  Although the deposit copy of the site he used for his copyright registration wasn’t in the record, the jury could find that it contained the images at issue.

The court then found that the before-and-after photos weren’t copyrightable because no reasonable jury could find the photos were sufficiently creative or original. Though the bar was low, the photos failed to pass it.  Highly informative product photos intended to sell the product through accurate depiction may lack sufficient creativity to be protected, and that was what happened here. Such photos “lack any creativity or originality primarily because they serve a utilitarian end—to identify goods or services that a viewing customer can expect from the business.”

Pohl argued that he was responsible for “selecting the camera, posing the subject matter, and determining the lighting and photo angle before taking the photographs.” But none of this involved creativity.  He didn’t remember what kind of camera he used—even whether it was digital or film.  He didn’t remember whether Belinda was sitting or standing for the photos.  “To the extent he posed her for the camera, it was to tilt her head, lift her chin up or down, instruct her to smile, or to tell her to look at the camera. As for lighting, there is no creativity in merely having sufficient lighting in the room ….” For the angle, he testified that he moved “the camera in and out until I get it in focus,” which the court deemed “the most rudimentary and basic task for photographers since the era of the daguerreotype.” The entire process took no more than five minutes.

If utilitarian photos of Chinese food in different patterns are uncopyrightable, as a previous case held, then these photos are clearly uncopyrightable; “directing a subject to smile and moving a camera to focus on a portion of the subject’s face” has even less of a “creative spark.”