Smile! Dentist’s “Before and After” Pictures May be Copyrightable After All!

Stephen Carlisle May 9, 2019

The last weeks of April and May have seen good news for photographers come out of the Federal Court system. On April 26, 2019, the Fourth Circuit reversed a truly awful decision on stock photography and fair use. ¹ A little less than a week later, came another reversal, this from the 11^th Circuit Court of Appeals that broadly criticized the District Court’s conclusion that “before and after” pictures taken by a Florida dentist were “not copyrightable.” ²

The District Court ruled:

“Pohl’s described process involves no ‘creative spark.’… 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 where Pohl took the photographs. He offers no evidence regarding the shading or lighting of the photographs. The photo angle involved Pohl ‘mov[ing] the camera in and out until I get it in focus,’ —the most rudimentary and basic task for photographers since the era of the daguerreotype. The whole process took no more than five minutes.…In short, when viewing the before-and-after photos, no pairs of eyes on a reasonable jury can find any modicum of creativity or originality in these photographs.” ³

This blog has written about the case before. ⁴ Back then I wrote:

“The first problem is that the Court misconstrues the concept of ‘originality.’ The Copyright Act grants copyright to ‘original works of authorship fixed in any tangible medium of expression.’ In this context, ‘original’ does not mean that no one has ever thought of it before. It simply means “not copied from someone else.”

“The originality requirement does not demand that the work for which copyright protection is sought be either novel or unique; rather, originality requires ‘a work independently created by its author, one not copied from pre-existing works…’” ⁵

And I made these points:

• Plaintiff selected the model. Is this a creative choice?
• The photos are a close-up. They could have been full faced. Is this a creative choice?
• The photos are taken from the front. They could have been taken from the side. Is this a creative choice?
• In the first photograph, “Belinda” is not wearing lipstick. In the second photograph she is. Is this a creative choice meant to make the smile more attractive?
• The Court complains, “there is no creativity in merely having sufficient lighting in the room where Pohl took the photographs.” I think your average photographer would disagree on this point. Lighting the room is everything.
• The Court complains, “The photo angle involved Pohl ‘mov[ing] the camera in and out until I get it in focus,’ —the most rudimentary and basic task for photographers since the era of the daguerreotype. The whole process took no more than five minutes.” Why does this matter? Does a sports photographer take longer than a second (if that) to focus and shoot? Does this mean that the sports photographer has no copyright? ⁶

In the opinion, the 11^th Circuit first notes that the Copyright Office granted a copyright registration to Dr. Pohl, and that this gives him a rebuttable presumption that the claim of copyright is valid. ⁷

Next, the Court quotes extensively the benchmark case on originality, the Supreme Court case of Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc. ⁸ The Court notes that:

“The Supreme Court has cautioned that it is not difficult to satisfy the originality requirement for purposes of copyright protection. (citation omitted) An author need only independently create the work (as opposed to copy it from other works) and imbue it with ‘some minimal degree of creativity.’ (citation omitted) ‘To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice.’ (citation omitted) And ‘[t]he vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be.’” (citation omitted) ⁹

Then, the Court cites to another case of binding precedent, its own decision in Home Legend, LLC v. Mannington Mills, Inc. ¹⁰

“’[I]n Home Legend, this Court held that a digital photograph depicting 15 stained and time-work maple planks, which was created as a flooring design, was sufficiently original because the creators imagined what raw wood might look like after years of wear, and then added marks to the wood planks and digital images to render the design.’ (citation omitted). That was sufficiently creative to ‘hurdle the low bar of copyrightable originality.’ (citation omitted) Our decisions teach that the elements that combine to satisfy Feist’s minimal ‘creative spark’ standard will vary depending on the photographer’s creative choices.” ¹¹

The Court deftly reaches into the deposition testimony of Dr. Pohl, to describe the creative choices made, which somehow escaped the notice of the trial court.

• Pohl testified that he took Belinda’s “before” picture with her sitting in a dentist chair.
• Belinda’s “after” picture was taken with her standing in front of a photography screen.
• Pohl testified that he was solely responsible for choosing what type of camera to use to take Belinda’s pictures.
• Pohl testified he was solely responsible for positioning Belinda.
• In staging the picture, Dr. Pohl instructed Belinda to look directly at the camera, instead of an angled or profile perspective.
• Pohl chose to take the pictures close-up, instead of capturing Belinda’s full face.
• Pohl chose to photograph Belinda smiling, instead of retracting her lips and photographing her teeth and gums only. ¹²

The Court makes plain the error of the District Court by stating:

“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 ‘[o]riginality does not signify novelty.’ (citation omitted) 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. (citation omitted) And it cannot be said that Dr. Pohl’s pictures are ‘slavish copies’ of an underlying work.” (citation omitted) ¹³

Several points are worth noting.

• The Court issued the opinion without hearing any oral argument, indicating that the question was not close.
• The Court did not expressly reverse the entire decision, instead ruling that the questions of fact cited by the Court of Appeals meant summary judgment was not warranted.
• The Court of Appeals marked the decision “do not publish” which limits its ability to be cited as legal precedent. ¹⁴

On remand, there may be an attempt to paint the use by the Defendant as (all together now) “fair use.” I do not see this argument getting very far. The photos of Dr. Pohl were appropriated by the Defendant, which then placed them on seven dental websites that were (presumably) competitors of Dr. Pohl. Unless the photographs were served up with commentary criticizing the dental work (and the opinions are silent on this issue), then the use can hardly be said to be “transformative” in any way. Indeed the photos would work towards the exact same effect that Dr. Pohl had in placing them on his website -“see what good work I do.” It is also worth noting that appropriating Dr. Pohl’s photos and passing them off as the work of competitors, raises unfair competition issues which are governed by the Trademark Act.

So, twice in the span of days, “lazy appropriators,” you’ve been warned against doing so.

And that’s something to smile about.