Every photo doesn’t automatically have the veneer of copyrightability. %CUT% Dr. Mitchell A. Pohl is a cosmetic dentist who is very proud of his work. He posted before and after pictures of one of his patients on his website. The photos showed the patient’s unfortunate ‘before’ smile (teeth, lips and small area around the mouth) and her ‘after’ beautiful healthy smile. Dr. Pohl registered the photos with the US Copyright Office. Then Dr. Pohl found seven websites that used his photos. He sued the alleged infringer, MH SubI, LLC d/b/a Offcite, for copyright infringement. While Dr. Pohl obviously does fantastic work, his photos didn’t bridge the gap into copyrightable subject matter. The District Court for the Northern District of Florida performed the judicial version of a root canal and granted Offcite’s motion for summary judgment. The court held that Dr. Phol’s self-serving affidavit was as convincing as “plaque on a molar” and no reasonable jury could find that the photos were creative enough for copyright protection. The court later performed another extraction by denying Dr. Pohl’s motion to reconsider.

In 1991, the U.S. Supreme Court decided that the standard of creativity for copyright protection required a minimal level of creativity. Over the last year, numerous decisions explored how low that level of creativity can go. %CUT% The First Circuit Court of Appeals held that a chicken sandwich and its recipe are not copyrightable (Norberto-Colon Lorenzana et al. v. South American Restaurants, Corp.). The Ninth Circuit Court of Appeals held that series of yoga poses is not copyrightable (Yoga College of India LP et al. v. Evolution Yoga LLC et al.). However, the Ninth Circuit Court of Appeals held that the Batmobile is copyrightable because it is considered a “character” (DC Comics v. Towle).