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How Much Creativity Is Required for Copyright Protection?


January 10, 2019
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A Recent Federal Court Decision Considers the Amount of Creativity Required for Copyright Protection

A recent federal court decision involving the alleged copyright infringement of teeth photographs is generating attention, both for its excessive puns and its interpretation of the amount of creativity required for copyright protection. “Meeting the standard for creativity is not like pulling teeth,” Judge Mark E. Walker of the Northern District of Florida wrote in Pohl v. MH SUB I LLC (d/b/a Officite). However, he still found that a Boca Raton dentist failed to demonstrate that before-and-after photos of his cosmetic dentistry met the bar.

How Much Creativity is Required for Copyright Protection?
Photo courtesy of Lesly Juarez (Unsplash.com)

Facts of the Case

Dr. Mitchell A. Pohl, a practicing dentist in Boca Raton, Florida, began taking before-and-after photographs of his cosmetic dental work for his practice’s website. The pair of photographs at issue displays his patient Belinda’s teeth — one before the dental work and the other after the dental work. Each photo consists of her teeth, her lips, and a small area around her mouth.

In November 2005, Pohl registered the photos with the U.S. Copyright Office. In April 2016, Pohl performed a reverse-image search on Google of the before-and-after photos of patient Belinda. In doing so, Pohl claims to have discovered seven websites displaying the copyrighted images. All seven websites identified Defendant Officite as the designer or developer. Pohl subsequently filed suit for copyright infringement.

Creativity Required for Copyright Protection

In Feist Publications Inc. v. Rural Telephone Service Co., the U.S. Supreme Court addressed the minimum constitutional standards for copyright protection. In a unanimous decision, the Court held that a telephone directory containing an alphabetical list of subscribers, along with their corresponding towns and telephone numbers, failed to meet the constitutional standard of originality required for copyright protection. In reaching its decision, the Court clarified the degree of originality required for copyright protection. As Justice Sandra Day O’Connor explained:

The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws.

The Court further noted that the protection is not limitless. While the bar for creativity is low, it does exist. “This protection is subject to an important limitation. The mere fact that a work is copyrighted does not mean that every element of the work may be protected,” Justice O’Connor wrote. “Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author.”

With regard to the telephone directory, the Court concluded it was “a garden-variety white pages directory, devoid of even the slightest trace of creativity.” Justice O’Connor further wrote:

Rural’s selection of listings could not be more obvious: it publishes the most basic information-name, town, and telephone number-about each person who applies to it for telephone service. This is “selection” of a sort, but it lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. Rural expended sufficient effort to make the white pages directory useful, but insufficient creativity to make it original.

Court’s Decision in Pohl v. MH SUB I LLC (d/b/a Officite)

Judge Walker relied on the Supreme Court precedent in ruling that the before-and-after teeth photos are not entitled to copyright protection. “Even though the deposited materials may have included the before-and-after photos, they are not copyrightable because no reasonable jury could find the photos are sufficiently creative or original to receive copyright protection,” he wrote.

Expressly citing Feist, Judge Walker concluded that Pohl’s described process of photographing Belinda’s teeth involves no “creative spark.” In so ruling, the judge rejected Pohl’s arguments that he exhibited creativity by selecting the camera, posing the subject matter, and determining the lighting and photo angle before taking the photographs. Judge Walker wrote:

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. Id. 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. 

In further support of his decision, Judge Walker cited prior federal court rulings denying copyright protection to commercial photographs. They included Oriental Art Printing, Inc. v. Goldstar Printing Corp., in which a New York federal court held that generic photos of Chinese food served a utilitarian purpose and were not creative. “[P]laintiffs’ photographs serve a purely utilitarian purpose: to identify for restaurant customers those dishes on a take-out menu, such that the customers may achieve a better understanding of what a particular dish contains,” the court wrote in that case.

Judge Walker employed the same reasoning to find that Pohl’s images lacked a creative spark. “There is nothing remotely creative about taking close-up photographs of teeth,” the judge concluded. “The before-and-after shots served the purely utilitarian purpose of displaying examples … to potential customers.”

Key Takeaway

The decision in Pohl v. MH SUB I LLC (d/b/a Officite) arguably makes it more difficult for businesses to gain copyright protection for similar types of advertising photos. To ensure images are protected, owners must be able to show that the photos are creative, at least in some small way.

If you have any questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, William R. Samuels, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.