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Pohl v. Officite: Are photographs utilitarian and therefore unoriginal or uncreative under § 102?

Photos of Belinda’s teeth the Court determined to be unoriginal and uncreative 

[T]his Court finds that the photos fall into a class of photographs that federal courts throughout the United States have found to be devoid of creativity or originality.

There is, after all, only so much to argue about the creativity and originality of close-up photographs of teeth….[O]riginality in photographs “may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.” Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992). Pohl was responsible for, inter alia, selecting the camera, posing the subject matter, and determining the lighting and photo angle before taking the photographs,” he argues. ECF No. 46, at 9. Such analysis is riddled with cavities that no cursory filling can rectify.

Pohl’s described process involves no “creative spark.” Feist, 499 U.S. at 1. Pohl does not know what type of camera he used—or even if it was a digital camera or one requiring film. ECF No. 53-1, at 8. 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 chinup or down, instruct her to smile, or to tell her to look at the camera. Id.

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,” id. at 7,—the most rudimentary and basic task for photographers since the era of the daguerreotype. The whole process took no more than five minutes. Id. 

The photographs serve the purely utilitarian purpose of advertising Pohl’s services. He admits as much. “I use the before and after pictures of my dental work to promote my skills in the field of cosmetic dentistry.” ECF No. 40-1, at ¶ 19. Surely arranging Chinese food in different patterns after placing them on decorative plates to achieve an aesthetically pleasing look involved more “creative spark” than directing a subject to smile and moving a camera to focus on a portion of the subject’s face. If the former is neither creative nor original, then the latter most certainly is not. In short, when viewing the before-and after photos, no pairs of eyes on a reasonable jury can find any modicum of creativity or originality in these photographs.

For Pohl’s brief on appeal, click here.

Fourth Estate v. Wall-Street.com: When does the photographer “make registration” under § 411(a)?

Whether the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the U.S. Courts of Appeal for the 5th and 9th Circuits have held, or only once the Copyright Office acts on that application, as the U.S. Courts of Appeals for the 10th and, in the decision below, the 11th Circuits have held. 

For proceedings in U.S. Supreme Court, click here.

Stevens v. Corelogic: What is the knowledge required for § 1202(b)?

[A]s the statute is written in the future tense, the Photographers need not show that any specific
infringement has already occurred. Also, recognizing that “nothing is completely stable, no plan is beyond alteration,” we have previously observed that statutes requiring knowledge that a future action “will” occur do not “require knowledge in the sense of certainty as to a future act.”
United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2010). Rather, knowledge in the context of such statutes signifies “a state of mind in which the knower is familiar with a pattern of conduct” or “aware of an established modus operandi that will in the future cause a person to engage in” a certain act.
Id. Applying that concept here, we hold that a plaintiff bringing a Section 1202(b) claim must make an affirmative showing, such as by demonstrating a past “pattern of conduct” or “modus operandi”, that the defendant was aware of the probable future impact of its actions.

The Photographers have not offered any specific evidence that removal of CMI metadata from their real estate photographs will impair their policing of infringement. There are no allegations, for example, of a “pattern of conduct” or “modus operandi” involving policing infringement by
tracking metadata. Todd, 627 F.3d at 334. Indeed, the evidence presented cuts against any inference that metadata is of any practical significance to the Photographers in policing copyright infringement of their images.

To read the 9th Circuit’s opinion, click here


Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.