Court Rules “Utilitarian Advertising” Photograph Not Protected by Copyright

Stephen Carlisle July 13, 2018

Less than 10 days after a truly terrible decision against photographers, ¹ comes another court decision that rules “before and after” photographs of a dental patient were not entitled to copyright at all. The case, Pohl v. MH SUB I, LLC ² holds that the “photographs…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.” ³

Under this line of reasoning, any photograph that accompanies a realism based advertising campaign is not copyrightable.

How did we get there?

The Plaintiff is a dentist practicing in Florida. One of his specialties is cosmetic dentistry. He takes before and after pictures of his work to place on his website. After doing a Google image search, he found one of his photographs on no less than seven different websites. All of these sites were created by the Defendants. ⁴

To be sure, the “before and after” photographs are not going to be confused with the work of Richard Avedon, Annie Leibovitz or Ansel Adams. The photos show a close-up of one of the Plaintiff’s patients smiling, identified by the Court as “Belinda.”

Over the next five pages, the Court goes out of its way to ridicule the Plaintiff’s case with every tooth or dental related pun or cliché’ he can think of:

• Plaintiff may be chomping at the bit…
• The Court sinks its teeth…
• …rendering the copyright toothless…
• [Plaintiff] fights tooth and nail…
• [Plaintiff] does little to brace himself against this line of argument….

And so on.

But the crux of ruling comes down to this:

“Pohl’s described process involves no ‘creative spark.’ Pohl does not know what type of camera he used—or even if it was a digital camera or one requiring film. He does not know if patient Belinda was sitting or standing when he photographed her mouth. 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.

The photographs serve the purely utilitarian purpose of advertising Pohl’s services. He admits as much. ‘I use the before and after pictures of my dental work to promote my skills in the field of cosmetic dentistry.’

…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.” ⁵

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.” ⁶ 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…’” ⁷

Creativity is equivalent to authorship, of which the Copyright Act lists several types, including photographs. ⁸ If “original” and “creativity” were synonymous, then Congress going out of its way to define “works of authorship” would be duplicative and unnecessary.

Next, the Court ignores the fact that most of the work in taking the photograph happens before the shutter is pressed, and is sometimes not revealed in the final photograph.

For example, last week I took my son to have his senior high school portrait taken by a professional photographer. This involved him wearing a tuxedo jacket and black bow tie. The tuxedo “shirt” provided by the photographer was no “shirt” at all. It was put on like a straight jacket and cinched tightly in the back. And the wardrobe assistant informed him in advance that it might not be comfortable to wear, but he would only have it on a short time. Why do this? This makes the shirt lie flat on the body so the result looks better. Is this a “creative” choice? I think that it is, even though it is not obviously apparent in the final photograph.

So, let’s go back through the process of taking the subject photographs and see if there were any creative choices made:

• 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 “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.” I sincerely doubt that the photographer who took my son’s senior portrait did much more than that in “posing” him. Does this mean she has no copyright in the portrait?
• 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?

Consider the implications if we take this decision to its logical conclusion.

• A news photographer who is covering an event (say a political demonstration), has no copyright because the photographer does not adjust the lighting, pose the subjects, and merely focuses the camera and shoots.
• A sports photographer who is covering a game (say a football game in an outdoor stadium), has no copyright because the photographer does not adjust the lighting, pose the subjects, and merely focuses the camera and shoots.
• There is no copyright in a selfie. The pose is likely to be un-creative (put your arm around the person next to you and smile!) and the photographer does not adjust the lighting, nor do they focus (taken care of by the camera!), and shoots.
• There is no copyright in a photograph that accurately depicts a product intended to be used for advertising purposes.

Most notably, the leading treatise on copyright law, Nimmer on Copyright disagrees with this Court’s approach:

“[A]lmost any photograph may claim the necessary originality to support a copyright merely by virtue of the photographers’ [sic] personal choice of subject matter, angle of photograph, lighting, and determination of the precise time when the photograph is to be taken.” ⁹

Let’s also not forget that the Copyright Office, who probably knows a thing or two about copyright, granted the photos registration filing. ¹⁰

The Court does cite to one case in which photographs of plates of Chinese food was found to be “utilitarian” and “not creative:” Oriental Art and Printing, Inc. v. Goldstar Printing Corp. ¹¹ This case, however, has been criticized in other districts. Plus, it contains this erroneous explanation of the law:

“The Court should note that finding the photographs in question to be copyrightable would secure plaintiffs the exclusive right of use in such photographs, which effectively would permit them to monopolize the market for printing menus that depict certain commonly served Chinese dishes.” ¹²

This is not the case. When expression is very thin, or minimal, or capable of being expressed in a limited number of ways, liability would result only if verbatim copying occurred. ¹³

Or, as stated by this photography blog:

“There are really only a few camera angles in food photography that you see again and again, but you need to make the one you choose, a conscious decision. Where you place the camera will affect the type of story you’re trying to tell.” ¹⁴

So it is with “before and after” pictures. There are a limited number of poses and angles that will adequately convey the information needed. So, if Defendants had made their own photographs, copying the lighting and framing done by Plaintiff, you would be hard pressed to find infringement because there are so few choices that work.

But they didn’t. They copied Plaintiffs photographs. So, I turn the question back to the Court. If the Plaintiff’s photograph is so devoid of artistic expression that it does not qualify for copyright, why did they copy it?

Lastly, I found the Court’s attempt at humor to be ill advised. If I were the Plaintiff here, I‘d be pretty steamed, not only because I lost the case, but because the Judge seemingly refused to take the case seriously.

I remember a legal education seminar on writing effective briefs and opinions. The speaker said:

“Now for a word on judicial humor…DON’T.”