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From Intellectual Property Law Daily, May 2, 2019

Jury must decide whether photos of dental patient were entitled to copyright protection

By Pamela C. Maloney, J.D.

Whether a dentist’s photographs of a cosmetic dentistry patient involved creativity sufficient for copyright protection raised a question of fact precluding summary judgment in favor of a dental practice that used the photos in its own advertising.

In an infringement action brought by a dentist against a dental practice that had posted one of his patient’s "before" and "after" pictures on several websites, the evidence raised a question of fact as to whether the dentist had exercised some personal choice in the rendition, timing, or creation of the photos to establish a protectible copyright, the U.S. Court of Appeals for the Eleventh Circuit ruled, reversing the district court’s grant of summary judgment in favor of the dental practice (Pohl v. MH Sub I LLC, May 1, 2019, per curiam).

A dentist—who routinely took "before" and "after" pictures of his patients who underwent cosmetic dentistry treatments, which he then posted to his website to depict his services—sued MH Sub I LLC (doing business as Officite) for direct copyright infringement after discovering that the company had created websites for its clients on which it publicly displayed copyrighted "before" and "after" pictures of one of his patients without his permission. The district court had granted Officite’s motion for summary judgment, finding that the patient’s photographs were not copyrightable because no reasonable jury could find the photos were sufficiently creative or original to warrant copyright protection. The dentist appealed.

Originality. The Eleventh Circuit rejected the district court’s finding that the process used by the dentist to take the patient’s photographs involved no "creative spark." In his deposition, the dentist had stated that he took the patient’s "before" picture with her sitting in a dentist chair and her "after" picture with her standing in front of a photography screen. He also stated that he was solely responsible for choosing what type of camera to use to take the pictures and for positioning the picture. In staging the picture, the dentist had instructed the patient to look directly at the camera, instead of an angled or profile perspective and he chose to take the pictures close-up, rather than capturing the patient’s full face. In addition, the dentist chose to photograph the patient smiling, instead of, for example, retracting her lips and photographing her teeth and gums only. He also selected the timing and subject matter of the photographs—that is, he took the pictures before and after he completed his cosmetic dentistry procedure on the patient. Finally, the dentist always took the patient photographs himself in cosmetic dentistry cases, instead of having his staff take them, stating that he was extremely picky and the cosmetic dentistry cases were critical to him. This evidence was sufficient under the generous standard of originality used in evaluating photographic works for copyright protection to raise a question of fact as to whether the author had exercised some personal choice in the rendition, timing, or creation of the subject matter involved.

The Eleventh Circuit further explained that although the district court believed that the angle chosen by the dentist when shooting the photos involved "the most rudimentary and basic task for photographers," the Supreme Court has made plain that originality did not signify novelty. In addition, it could not be said that the dentist’s pictures were "slavish" copies of an underlying work. Finally, the fact that the photographs were intended solely for advertisement did not prevent them from being protectible under copyright law. Instead, that fact served only as a circumstance for the jury to consider in determining the extent of the parties’ rights, the Eleventh Circuit instructed.

Considering the overall record evidence in a light most favorable to the dentist, there was a genuine issue of material fact as to whether the dentist made sufficiently creative decisions in take the patient’s pictures that precluded summary judgment in favor of Officite, the Eleventh Circuit determined.

This case is No. 18-13233.

Attorneys: Joel B. Rothman (Sriplaw, PLLC) for Mitchell A. Pohl. Fred O. Goldberg (Berger Singerman, LLP) and Matthew S. Nelles (Nelles Kostencki PLLC) for MH Sub I LLC d/b/a Officite.

Companies: MH Sub I LLC d/b/a Officite

MainStory: TopStory Copyright AlabamaNews FloridaNews GeorgiaNews

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