May 2, 2019, 11:18 am CDT
Photos by Mitchell Pohl.
A federal appeals court is giving a Florida dentist a chance to prove his before-and-after smile photos had enough originality to warrant copyright protection.
The per curiam decision by the 11th U.S. Circuit Court of Appeals at Atlanta reversed a trial judge’s decision to toss the case. The 11th Circuit’s unpublished May 1 decision is a win for the Boca Raton dentist, Mitchell Pohl, who showcases photos of his cosmetic dentistry on his website.
Pohl had sued after a company called Officite used his 2005 photo of a patient named Belinda on websites promoting other dentists’ practices.
U.S. District Judge Mark Walker had ruled last June that the photos of Belinda didn’t contain enough of a “creative spark” to merit protection. But the 11th Circuit said Walker erred when he failed to credit some evidence or originality that was favorable to Pohl.
Pohl took the “before” picture when Belinda was in the dentist’s chair, took the “after” picture when she was standing before a photography screen, instructed her to look directly at the camera and to smile, and took close-up photos, the appeals court said.
The 11th Circuit stressed that the U.S. Supreme Court has set a low bar for originality, requiring only some slight degree of creativity.
“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 ‘originality does not signify novelty,’ ” the appeals court said.
“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.”
Looking at the evidence most favorable to Pohl, as required for the summary judgment motion, “it is reasonable to infer from this testimony that there was a precise manner in which Dr. Pohl wanted Belinda’s before-and-after photographs to come out in order to showcase his dentistry skills,” the appeals court said. “Dr. Pohl had something in mind when he took the pictures.”