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Copyright protection may not apply to before-and-after photos

July 27, 2018

By David Burger

Tallahassee, Fla. — A Florida cosmetic dentist who alleges that before-and-after photos taken of his patients' smiles were stolen and used on other dentists' websites is appealing a June 20 decision by the U.S. District Court that ruled against his claim of copyright infringement.

The suit vindicated Officite, an Illinois-based health care website developer and online marketing company that was sued by the dentist.

Joel Rothman, son of a retired dentist and a copyright lawyer who will represent the dentist, Dr. Mitchell Pohl, in his appeal, called the ruling "unprecedented" and "unfortunate." He immediately filed a motion to reconsider, which the judge denied.

Dr. Pohl, who practices in Boca Raton, Florida, in 2000 began posting on his website before-and-after pictures of some of his patients' teeth that he had taken. In 2005, after coming across one of his pictures posted on a website of a Staten Island, New York, dentist, Dr. Pohl filed an application and was issued a copyright of the pictures on his website.

In 2016, Dr. Pohl performed a reverse-image Google search of the before-and-after photos of one of patients, and found seven websites — not of his own — of dentists who seemed to be portraying the photos as their own work. Dr. Pohl, through his attorney, sent a letter to Officite — which was identified on each website as the website developer — demanding that it cease and desist using Dr. Pohl's pictures. By June of that year, all of the pictures were removed from the seven websites, but still Dr. Pohl brought suite against Officite for copyright infringement.

In the ruling, District Judge Mark E. Walker said the cited pics "are not copyrightable because no reasonable jury could find the photos are sufficiently creative or original to receive copyright protection."

Judge Walker continued, "Meeting the standard for creativity is not like pulling teeth … Low as this bar is, Pohl's before-and-after photos of Belinda's incisors and canines fail to meet it."

Judge Walker compared the photos to generic photos of Chinese food at Chinese restaurants.

"Pohl's described process involves no 'creative spark,'" Judge Walker said. "Surely arranging Chinese food in different patterns after placing them on decorative plates to achieve an aesthetically pleasing look involved more 'creative spark' that directing a subject to smile and moving a camera to focus on a portion of the subject's face."

In summary, Judge Walker said, "There is nothing remotely creative about taking close-up photographs of teeth. The before-and-after shots served the purely utilitarian purpose of displaying examples of Pohl's dental services to potential customers. They do not merit copyright protection."

To read the ruling in full, visit www.leagle.com.

Matthew S. Nelles, partner with the Berger Singerman law firm representing Officite, hailed the ruling, saying he was "very pleased" with the judge ruling for his clients. "From the onset, if there was ever a case that didn't satisfy the creativity requirement for copyright protection, this is it," Mr. Nelles said. "It was point-and-shoot."

Stephen Carlisle, J.D., copyright officer for Nova Southeastern University and a published author on copyright law, was an interested observer in the case and criticized the judge's ruling in a call with the ADA News. "They missed the boat on this one," Mr. Carlisle said.

Mr. Carlisle argued that the court ignored the fact that most of the creative work in taking the photograph happens before the shutter is pressed and is sometimes not revealed in the final photograph. In addition, he said that the U.S. Copyright Office obviously found the photographs copyrightable.

"If the plaintiff's photograph is so devoid of artistic expression that it does not qualify for copyright, why did [the defendants] copy it?" Mr. Carlise said.

It is unknown if the practice of using others' photos on other dental websites is commonplace, but according to Dr. Richard B. Winter, a third-generation dentist in Milwaukee, "it's probably incredibly rampant," he told the ADA News. He said that he has found more than 25 websites that have used images he created for his website, some as far away as Australia. "It's probably more, but I got tired of counting." He had considered litigating, but said attorneys he contacted weren't interested.

Dr. Winter said the issue comes down to a violation of the ADA Code of  Ethics, which states, "Dentists have an ethical obligation to ensure that their websites, like their other professional announcements, are truthful and do not present information in a manner that is false and misleading in a material respect."