Article by: Jeffrey L. Rehmeyer II, Esquire
Recently, a U.S. District Judge in Florida ruled that a dentist’s before and after photographs of his patient’s teeth didn’t create enough of a “creative spark” to merit protection. The Judge found that the photos were “devoid of creativity or originality” and thus not worthy of copyright protection. The case has elicited strong feelings on both sides of the chair and is now under appeal.
Mitchell Pohl, a dentist in Florida, photographed the teeth of his female patient before and after he fixed them. The teeth were crooked and stained at first. After treatment, the teeth were straight and gleaming white. Dr. Pohl used the images on his dental practice website to showcase working and registered them with the United States Copyright Office. At some point, Pohl found out that his photos had been reposted on-line without his permission by a company that used his pictures to promote other dental practices. Pohl sued for copyright infringement.
Pohl and his attorneys argued that it was a simple case of a website marketer grabbing copyrighted photographs without permission. But the attorneys representing the website marketing company argued that the images contained zero artistry, which meant that they could not be protected by copyrighted.
The Judge agreed. He stated that there is nothing remotely creative about taking close up photographs of teeth and thought that they served only a purely utilitarian purpose. In his ruling, the Judge referenced several other cases in which photos of pet beds, computer components, motorcycle parts or images of Chinese food choices on a menu were deemed too utilitarian to merit copyright protection.
Pohl says that the Judge missed the point, because the creativity didn’t begin when he picked up the camera, but rather when the patient walked into his office and he saw a blank canvas that he could craft through his dental work. After his work was complete and he pushed the shutter on his camera, then the creativity stopped.
Meeting the standard for creativity for copyright registration may not always be as simple as it seems. If you want guidance in protecting your intellectual property and preventing others from chomping away at it, contact a member of the CGA Law Firm Business Department to talk further about your copyrights, trademarks and licenses.