Pulling Teeth

• Author: Stephanie Zimmermann
• Pages: 16-17

The Docket

EDITED BY KEVIN DAVIS / KEVIN.DAVIS@AMERICANBAR.ORG

PHOTOS BY MITCHELL POHL

National

Pulse

16 || ABA JOURNAL DECEMBER 2018

Pulling Teeth

Florida ruling on dental photographs takes a bite out of copyright

protections By Stephanie Zimmermann

They beckon

from all corners of

the internet: eye-

catching before-and-

after phot ographs

showing how dental

work, body sculpting, ha ir restoration

and other servic es can transform looks

and change lives.

Now a legal ruling on photos shot by

a Florida dentist of his patient’s teet h—

fi rst looking crooked and stained, t hen

straight and gleaming white—could

make it harder for such photos to ga in

copyright protection.

A U.S. district judge i n Florida ruled

in June that the dentist’s before-a nd-

after photos did n’t contain enough of a

“creative spark” to merit prot ection.

“Meeting the standa rd for cre-

ativity is not li ke pulling teeth,”

wrote Judge Mark E. Walker of the

Northern Distr ict of Florida in his rul-

ing in Pohl v. MH SUB I LLC (d/b/a

O  c i t e ) that was replete with corny

puns involving teet h, bites and braces.

Walker tagged the photos as “devoid

of creativity or or iginality” and thus

not worthy of copyright prot ection.

The case has elicit ed strong feelings

on both sides, with some law yers

thinking the judge got it r ight and

others worry ing the decision, which

is being appealed, cou ld have detri-

mental e ects on other images used in

advert ising.

Some said the copyright r uling ulti-

mately could harm c onsumers who

won’t know whether to trust busi-

nesses that display befor e-and-after

photos.

PROMOTIONAL PICTURES

The case began w ith Mitchell Pohl,

a dentist in Boca Rat on, Florida, who

photographed the teeth of h is female

patient, Belinda, be fore and after he

fi xed them. Pohl used the images on

his dental pract ice website to show-

case his work and even reg istered

them with the U.S. Copy right O ce—

although there was a di spute during

the case about whether he ha d prop-

erly dated the pho tos.

At some point, Pohl found out that

his photos had been repo sted online

without his permi ssion by a company

called O cite, which used his t eeth

pictures on websites promoti ng other

dental pra ctices.

Pohl sued for copyright infr inge-

ment. His attorneys, W illiam H.

Hollimon and Martin B . Sipple of

Tallahassee, t hought it was a simple

case of a website marke ter grabbing

copyright ed photos without perm is-

sion. But attorney Matthew S. Nel les

of Fort Lauderdale, represent ing the

website marketing compa ny, argued

the images contai ned zero artistry

—which means they can’t be copy-

righted. Walker agreed.