Copyright Law

Dentist may pursue infringement case over cribbed before-and-after smile photos, 11th Circuit says

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Photos by Mitchell Pohl.

Updated: A federal appeals court is giving a Florida dentist a chance to prove his before-and-after smile photos had enough originality to warrant copyright protection.

The per curiam decision by the 11th U.S. Circuit Court of Appeals at Atlanta reversed a trial judge’s decision to toss the case. The 11th Circuit’s unpublished May 1 decision is a win for the Boca Raton dentist, Mitchell Pohl, who showcases photos of his cosmetic dentistry on his website.

Pohl had sued after a company called Officite used his 2005 photo of a patient named Belinda on websites promoting other dentists’ practices.

U.S. District Judge Mark Walker had ruled last June that the photos of Belinda didn’t contain enough of a “creative spark” to merit protection. But the 11th Circuit said Walker erred when he failed to credit some evidence or originality that was favorable to Pohl.

Pohl took the “before” picture when Belinda was in the dentist’s chair, took the “after” picture when she was standing before a photography screen, instructed her to look directly at the camera and to smile, and took close-up photos, the appeals court said.

The 11th Circuit stressed that the U.S. Supreme Court has set a low bar for originality, requiring only some slight degree of creativity.

“Although the district court believed Dr. Pohl’s photo angle involved ‘the most rudimentary and basic task for photographers since the era of the daguerreotype,’ the Supreme Court has made plain that ‘originality does not signify novelty,’ ” the appeals court said.

“While Dr. Pohl may not have carefully staged Belinda and adjusted the lighting as a professional photographer might have, that is not the standard. The photographs need only possess some minimal degree of creativity.”

Looking at the evidence most favorable to Pohl, as required for the summary judgment motion, “it is reasonable to infer from this testimony that there was a precise manner in which Dr. Pohl wanted Belinda’s before-and-after photographs to come out in order to showcase his dentistry skills,” the appeals court said. “Dr. Pohl had something in mind when he took the pictures.”

A lawyer for the dentist, William Hollimon of Tallahassee, told the ABA Journal in an email that the case returns to the district court, where he will ask the judge to rule for his client on the issue of infringement.

Hollimon said the federal judge’s decision tossing the case last year had the potential to significantly disrupt copyright protection as applied to photographs. The appellate reversal makes clear that the court is not retreating from precedents setting a low bar when determining originality, he said.

The 11th Circuit makes clear “that the inputs of the author must be considered in determining originality,” Hollimon wrote in his email. “Finally, the opinion makes clear that the use of a photograph is not determinative of whether or not the photograph is sufficiently original to merit copyright protection.”

Updated May 2 at 4:30 p.m. to include William Hollimon’s comments.

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