In 2004, Mitchell Pohl captured before-and-after shots of a patient, referred to as “Belinda” in court papers, for his Boca Raton cosmetic dentist surgery website.
But years later in 2016, a reverse Google image search revealed nothing to smile about, as seven other websites had used his images without crediting Pohl.
The dentist filed a complaint, alleging copyright infringement. But U.S. District Judge Mark E. Walker of Tallahassee yanked Pohl’s chances for a legal victory with a ruling issued on June 20.
“Meeting the standard for creativity is not like pulling teeth,” the ruling states.
It takes only a small amount of creativity, and “even the slightest artistic touch” will do in boosting copyright claims, according to legal precedent. But in “a case about teeth” — specifically one dealing with images showing only teeth, lips and a small part of a patient’s mouth — the court found the defense had a cleaner case.
Ultimately, the litigation turned on whether the photographs were “original” and “creative” enough to merit protection.
“Low as this bar is, Pohl’s before-and-after photos of Belinda’s incisors fail to meet it,” the court decided.
Counsel to the plaintiff William Hollimon of Hollimon P.A. in Tallahassee disagrees with this conclusion.
“I don’t think the analysis is reflective of the standard that should be applied for photographs and copyright ability,” Hollimon said.
The case has sparked fierce debate over where the line should be in determining what’s “creative,” versus what’s uninspired under Florida law.
“I’m left with the impression from this opinion that that’s a highly subjective determination,” Hollimon said. “And conjectory determinations are difficult for everybody to deal with because it reduces certainty. Most photographers, most lawyers, most reporters, I believe, prefer to have a little bit more certainty in their dealings.”
While Hollimon feels the ruling blurs the line, defense counsel Matthew Nelles, an attorney at Berger Singerman in Miami, believes it has provided much needed clarification.
“The threshold is very low. However, there is a threshold,” Nelles said. “And if the before-and-after pictures in this case crossed that threshold, then there would be no threshold. Because these were just pictures of somebody’s mouth.”
Nelles said the opinion is crucial because it stands apart in a practice area where most copyright cases are successful. While there are plenty of examples of what does merit copyright protection, there isn’t much to go from in terms of what does not.
“Most cases will pass the bar,” Nelles said. “The case law and this judge, in particular, recognized that. For that reason, there is not a wide body of law to cite where courts reject works as insufficiently creative.”
This case therefore provides groundwork for future copyright suits involving dental and medical practitioners in Florida, the attorney said.
“This may now become one of those significant and oft-cited cases like Oriental Art Printing, where the New York court found that photos of Chinese food appearing on a menu were not copyrightable,” said Nelles, who has previously taught copyright law at Nova Southeastern University.
Nelles’ argument was that Pohl’s photos were neither creative nor original. In making this case, he listed a range of factors to consider when assessing the originality of a photograph, including the equipment used, the framing and angle of the shot, as well as when the photographer captured the image.
“If there’s insufficient creativity, then the coryright registration is invalid as a matter of law,” he said. ”Timing alone could be what gives it its originality and its creativity, and gets you over the hump, which is a very small hump in copyright.”
In this case, Pohl admitted he wasn’t sure what type of camera he’d used to snap the photos — an acknowledgment that proved detrimental to his claim.
“I compare this to the famous World War II photograph taken on V-Day, of the sailor kissing the nurse. And while the author of that photograph, Alfred Eisenstaedt, ironically happened to be at the right place at the right time, his timing, among other things, was historic and helped to establish his creativity,” Nelles said.
Defense attorneys said the decision also rested on the interpretation of the U.S. Constitution’s copyright clause, which allows laws to promote useful arts and to give authors the exclusive right to their writings over certain periods. The term “useful arts” has since been expanded to include photographs, but that didn’t help Pohl’s case.
“These before-and-after photos do nothing whatsoever to promote the useful arts,” Nelles said. “They simply promote this dentist’s practice,” he says.
Nelles acknowledged there are potentially other claims that could have been raised in the case of before-and-after pictures being reused by other companies without permission. Unjust enrichment, for instance, and deceptive and unfair trade practices might have been viable causes of action under Florida law. But the copyright claims in federal court preempted state claims.
The plaintiff’s side said Walker’s decision as to the fate of two photos of teeth could have far-reaching consequences for practitioners who take similar photos in future.
“There are a lot of doctors, dentists, orthodontists and others who take before-and-after pictures of their work,” Hollimon said. “For anybody who’s doing that, this case is an argument that those pictures are not subject to copyright protection.”
The 30-day window for filing an appeal in this case will remain open until July 20, but the plaintiff has taken no further action.
“The client hasn’t made any final decisions about next steps,” Hollimon said.
Read the summary judgment: