Under US law, a work is not protected by copyright unless that work shows “at least some minimal degree of creativity.” Last month, a judge in the Northern District of Florida held that before-and-after images of dental work do not meet even that low threshold of creativity and, therefore, that the photos at issue had no copyright protection.
A Boca Raton dentist, Mitchell A. Pohl, sued a provider of pre-packaged website designs, Officite, for copyright infringement of before-and-after photographs of dental work he had performed. Pohl took photos consisting of two direct shots of the teeth of a patient identified as Belinda, one before dental work and one after dental work. These images appeared on Pohl’s website, which was covered by a copyright registration.
Pohl’s claims didn’t make it to trial but were ruled on by the judge after the defendant moved for summary judgment. A motion for summary judgment is a request by one party for the court to rule – before trial – that the case should be resolved on the pleadings.
The judge concluded that Pohl’s photos were not “sufficiently creative or original to receive copyright protection” and that they “served the purely utilitarian purpose of displaying examples of Pohl’s dental services to potential customers.”
The court acknowledged that very little creativity is required for a work to be protected by copyright but indicated that “[l]ow as this bar is, Pohl’s before-and-after photos of Belinda’s incisors and canines fail to meet it.”
Noting that Pohl didn’t know what kind of camera he used (not even whether it was digital or used film), didn’t know whether Belinda was sitting or standing when he photographed her mouth, and didn’t use any creativity in setting up the photo (Pohl indicated that he moved the camera in and out until the image was in focus), the court stated, “no pairs of eyes on a reasonable jury can find any modicum of creativity or originality in these photographs.”
Lest you think this case means you’re free to use any “utilitarian” photos you find on a website, you should be aware that creativity is in the eye of the beholder, and another judge may have ruled the other way, particularly if more care had been taken with the choice of camera, lens, shutter speed, lighting, angle, background and the like.
Further, Pohl’s registration covered his whole website, not just the photos. Had the photos themselves been timely registered, there would have been a rebuttable presumption that his copyright was valid, which may very well have been enough for Pohl’s claims to survive a motion for summary judgment.
It would, therefore, be a good idea to either shoot your own utilitarian photos or to contact the copyright owner and request permission to use the work, either for free or for a payment.
Please feel free to contact us if you have any questions about registering or enforcing your copyrights or about using work created by others.
