On June 20th, U.S. District Judge Mark Walker of the Northern District of Florida issued an order on summary judgment which terminated Pohl v. Officite, a copyright infringement case, before it headed to trial. The order, which contains about as much legal precedent as it does puns and wordplay, reflects the judge’s determination that before-and-after images of dental work do not meet the threshold of creativity required to establish copyright protection for the photos.
The original complaint in this lawsuit was filed by Boca Raton, FL-based dentist Mitchell A. Pohl last April. Pohl alleged that Officite, a provider of pre-packaged website designs for dentists and other health care providers, had used before-and-after images of dental work performed by Pohl and covered by a copyright registration filed by Pohl with the U.S. Copyright Office. The original complaint argued that the copyrighted images were included on “numerous” websites created by Officite and Pohl attached screenshots of three such websites to the complaint as examples. Officite denied the authenticity of Pohl’s screenshots and denied that Pohl’s photos ever appeared on any of the subject websites. Pohl sent a demand letter to Officite about the allegedly infringing photographs in May 2016. Pohl admitted that he never saw the photos on the websites after sending his demand letter, but he sued Officite for damages nonetheless.
On summary judgment, however, Judge Walker determined that the before-and-after images of the dental work performed by Pohl “served the purely utilitarian purpose of displaying examples of Pohl’s dental services to potential customers” and lacked the creativity required to merit copyright protection for the images. “Judge Walker recognized that there is a low threshold for proving the creativity required for copyright protection, but that there is a threshold nevertheless” said Matthew Nelles, partner at Berger Singerman in Ft. Lauderdale and counsel representing defendant Officite in this case. “Snapping a photo in a mechanical, rote fashion without an ounce of creative thought does not get you over that threshold.”
In Judge Walker’s order on summary judgment, the district court judge, deciding another of Officite’s arguments, determined that Pohl’s testimony was sufficient to create a genuine issue of material fact despite Officite’s contention that Pohl’s 2005 copyright registration only covered the website as it appeared in 2000 and not the before-and-after photos that were created in 2004. Pohl argued that in his copyright registration, he marked the year and date of the work’s completion as 2000 because he erroneously interpreted the copyright registration form as directing him to mark the date of the website’s publication, not the publication of the photos. Citing to prior case law from the Southern District of New York, Judge Walker determined that the court looks to the materials deposited with the copyright registration, including the before-and-after photos, and not the allegedly erroneous date to identify the scope of the copyright’s protections. “To my thinking, the dates indicated on the registration certificate should take precedent over the deposit material because the deposit material may be broader in scope than what the registrant actually intends to claim as his copyrighted work, and the certificate is what puts the public on notice of the registrant’s claim,” Nelles said. “I felt that I had good supporting cases for my position but the judge disagreed with me.”
Despite this, Judge Walker’s determination that no reasonable jury could find that Pohl’s photographs were either creative or original played a much bigger role in granting Officite’s motion for summary judgment and dismissing with prejudice the claims brought by Pohl. Citing to the U.S. Supreme Court’s 1991 decision in Feist Publications v. Rural Telephone Service Company and the Court of Appeals for the Ninth Circuit’s 2000 decision in Ets-Hokin v. Skyy Spirits Inc., Judge Walker noted that the threshold for determining the requisite level of creativity is extremely low. However, Pohl’s photographs failed to meet even this low threshold. Judge Walker noted other cases decided in the U.S. federal courts which held that photographs of pet beds, Chinese food, computer components or aftermarket motorcycle lighting accessories served the sole purpose of displaying those goods to potential customers, thus obviating copyright protection. Even in Oriental Art Printing v. Goldstar Printing Corp., a 2001 case decided by the Southern District of New York, the court found that photographs of Chinese food lacked artistic quality despite geometric artwork found in the arrangement of dishes or decorative patterns found on the plates.
Nelles noted that, although the photographs depicted imagery of dental work performed by Pohl, nothing about the photos reflected any aspect of any personal, creative influences of the author. Among the factors that could, in other circumstances, help to establish copyrightable expression are the selection of a particular type of camera, the angle, framing, and timing of the shot, or original lighting or subject-posing. During the case, Pohl could not recall the type of camera used to capture the images nor could he establish that the angle of the shot or the lighting used served any purpose other than for the utilitarian depiction of dental services for prospective clients. “In most copyright cases there are some measurable factors that would get you over the threshold for originality and demonstrate some level of creativity,” Nelles said. “In this case it was the complete reverse, there was literally nothing about these before and after photos that exhibited a creative spark.”
Aside from the legal precedent set by Judge Walker’s decision in this case, this order on summary judgment is notable for the incredible number of puns related to teeth and dentistry which found their way into Judge Walker’s writing. These include the following: “Although Plaintiff may be chomping at the bit to get to trial;” “The parties’ lawyers know the drill;” “This Court first sinks its teeth into Officite’s motion for summary judgment;” “rendering the copyright toothless;” “Pohl fights tooth and nail;” “This Court finds Pohl’s argument as strong as enamel;” “This Court next sinks its teeth;” and “Pohl’s evidence has some bite.” This list of puns from Judge Walker’s order is not exhaustive either. “Reading his opinion, I think that the judge certainly enjoyed this case,” Nelles said. “You wouldn’t otherwise expect to see this number of puns and wordplay.”
All joking aside, the case should be quite informative to business owners of all kinds that have captured images of their goods and services, which they may now find lacking in creativity and originality and therefore not protected by copyright. As to arguments to the contrary, at least Judge Walker does not appear to be a mandible… sorry, amenable.
Image Source: Deposit Photos.