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                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-13233
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 4:17-cv-00181-MW-CAS



MITCHELL A. POHL,
DDS,

                                                               Plaintiff-Appellant,

                                      versus

MH SUB I LLC,
d.b.a. OFFICITE,

                                                              Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________

                                 (May 1, 2019)

Before TJOFLAT, JORDAN and HULL, Circuit Judges.

PER CURIAM:
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      Plaintiff Mitchell A. Pohl, D.D.S., appeals the district court’s grant of

summary judgment to Defendant MH Sub I LLC, d.b.a. Officite (“Officite”) on his

copyright infringement claim. Without permission, Defendant Officite used and

published photographs that were taken from Plaintiff Dr. Pohl’s website. The

question on appeal is whether the record evidence created material issues of fact

that preclude judgment for Defendant Officite at this summary judgment stage.

After careful review of the record and the parties’ briefs, we conclude that the

record creates genuine issues of material fact as to whether Dr. Pohl’s photographs

were sufficiently original to warrant copyright protection. We thus reverse the

judgment and remand the case to the district court for further proceedings

consistent with this opinion.

                         I. FACTUAL BACKGROUND

A.    Dr. Pohl’s Photographs

      We set forth the record facts in the light most favorable to Dr. Pohl, the

non-movant. Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir. 2018). Dr. Pohl is a

practicing dentist in Boca Raton, Florida. He devotes a substantial portion of his

practice to cosmetic dentistry. This includes the application of cosmetic veneers.

      In 2000, Dr. Pohl started taking “before and after” photographs of his

patients to depict his dentistry services. With his patients’ authorization, he uses

the before and after photographs on his website to showcase his dentistry skills.


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      At issue in this litigation are the before and after photographs that Dr. Pohl

took of his patient, Belinda, in 2004. Originally from Alaska, Belinda sought out

Dr. Pohl’s cosmetic dentistry services to fix her smile. The “before” photograph is

a close-up of Belinda’s teeth, lips, and a small area surrounding her mouth.

Belinda appears to be somewhat smiling in the picture, revealing that her teeth

were stained and crooked before Dr. Pohl corrected them.

      The “after” photograph is another close-up of Belinda’s mouth, showing her

teeth, lips and a small area around her mouth. In the “after” photograph, Belinda’s

smile is more pronounced, displaying her bright white and uniformly shaped teeth.

Upon seeing the results of Dr. Pohl’s dental work, Belinda “couldn’t stop looking

in the mirror,” and wrote him a letter of appreciation.

      In taking these pictures, Dr. Pohl was solely responsible for choosing the

camera, lighting, photo angle, and positioning of Belinda. In fact, Dr. Pohl always

photographs his cosmetic dentistry patients himself because he is “anal retentive”

and cosmetic cases are critical to him. He does, however, allow his assistants to

take the before and after photographs in his orthodontic cases.

      As to Belinda’s photographs specifically, Dr. Pohl took the “before” picture

with Belinda sitting in a dental chair and the “after” picture with her standing in

front of a screen. Prior to taking the photographs, he instructed Belinda to “smile,”

“look at the camera,” and possibly positioned her head in a certain manner. Each


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picture showcased Belinda’s smile and teeth. In order to capture that shot, Dr.

Pohl moved closer to Belinda and zoomed in with the camera lens. Dr. Pohl

published Belinda’s before and after photographs on his website in 2005.

B.    Copyright Application

      In November 2005, Dr. Pohl personally prepared and applied for a copyright

covering the photographs he posted on his website. As deposit materials, Dr. Pohl

submitted a CD or DVD containing his entire “Boca Raton Cosmetic Dentist”

website, www.bocaratoncosmeticdentist.com, as it was published on the internet in

2005. According to Dr. Pohl, the deposited materials included the 2004 before and

after photographs of Belinda.

      In his application, Dr. Pohl claimed a copyright in his practice’s “Text and

Photographs” and “Website” therein and stated that the website was completed in

2000 and first published on November 20, 2000. The United States Register of

Copyrights registered Dr. Pohl’s copyright in his website with an effective date of

November 28, 2005.

      In January 2014, Dr. Pohl, through an attorney, filed a supplementary

registration because he realized that his claim to the “Text” on his website was

incorrect. He had intended to copyright only the website’s photographs. The

Register of Copyrights issued a supplementary registration, which copyrighted the

photographs on Dr. Pohl’s website.


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C.    Defendant Officite Allegedly Uses the Photographs

      In April 2016, Dr. Pohl performed a Google reverse-image search of the

before and after photographs of Belinda. The search revealed that Belinda’s

photographs were published on at least seven different dentists’ websites without

Dr. Pohl’s permission. To record this, Dr. Pohl took contemporaneous screenshots

of the websites. The seven websites were designed by Defendant Officite.

      Dr. Pohl reported this unauthorized use to his attorney. The attorney also

visited the same websites and documented that each website had published

Belinda’s before and after photographs. As a result, in May 2016, Dr. Pohl sent a

letter to Defendant Officite demanding that it cease and desist using his

photographs and compensate him for using them without his authorization. By

June 2016, the photographs had been removed from the seven websites. Defendant

Officite did not otherwise respond to Dr. Pohl’s letter.

                         II. PROCEDURAL HISTORY

A.    Defendant Dr. Pohl’s Complaint Against Officite

      In April 2017, Dr. Pohl sued Officite for direct copyright infringement,

under 17 U.S.C. § 501, alleging that Officite had created websites for its clients

that reproduced and publicly displayed his copyrighted before and after

photographs of Belinda without his permission. As relief, Dr. Pohl not only sought




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actual and statutory damages, but also asked the district court to permanently

enjoin Officite from further acts of infringement.

B.     Summary Judgment Motions

       After discovery, the parties filed cross-motions for summary judgment.

Dr. Pohl moved for partial summary judgment with respect to Officite’s liability

for copyright infringement. Officite moved for summary judgment, arguing that:

(1) based on his copyright application, Dr. Pohl’s 2005 copyright covered only his

website as it appeared in 2000, which did not include the 2004 photographs of

Belinda; (2) his photographs of Belinda were not copyrightable because they

lacked originality; (3) Belinda’s photographs never appeared on the seven websites

in question and Officite never possessed them; and (4) Dr. Pohl was not entitled to

damages.

C.     District Court’s Summary Judgment Order

       The district court granted summary judgment in favor of Officite. Taking

Officite’s arguments in turn, the district court first denied the motion as to

Officite’s claim that Belinda’s photographs were not protected by Dr. Pohl’s

copyright, concluding that there was a fact issue as to whether the relevant pictures

were among the materials Dr. Pohl deposited with his copyright application. 1



       1
       On appeal, Officite asks us to affirm the district court’s summary judgment order on the
independent basis that Dr. Pohl’s copyright registration does not claim Belinda’s photographs.
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       Second, the district court determined that Dr. Pohl’s before and after

photographs of Belinda were not copyrightable because no reasonable jury could

find the photos were sufficiently creative or original to warrant copyright

protection. Although Dr. Pohl had testified that he was responsible for selecting

the camera, posing Belinda, and determining the lighting and photo angle before

taking the photographs, the district court found that his described process for

taking the pictures involved no “creative spark.” In so ruling, the district court

emphasized that (1) the pictures served the purely utilitarian purpose of advertising

Dr. Pohl’s services, (2) the actions Dr. Pohl took in taking the pictures involved

“the most rudimentary and basic task[s] for photographers since the era of the

daguerreotype,” and (3) the entire photography process took only five minutes.

The district court therefore concluded that “[t]here is nothing remotely creative

about taking close-up photographs of teeth” and “no pair of eyes on a reasonable

jury [could] find any modicum of creativity or originality in these photographs.”

Because the photographs did not warrant copyright protection, the district court

determined that Dr. Pohl’s copyright claim lacked merit. This is Dr. Pohl’s appeal.

                             III. STANDARD OF REVIEW




We cannot affirm on that basis because we agree with the district court that genuine issues of
material fact preclude summary judgment on that argument.
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      We review an order granting summary judgment de novo. Blue, 901 F.3d at

1357. Because Officite moved for summary judgment, it can prevail only if it

“shows that there is no genuine dispute as to any material fact.” Fed. R. Civ. P.

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 2510 (1986). On review, we examine the record as a whole, which includes

“depositions, documents, [and] affidavits or declarations.” Fed. R. Civ. P. 56(c).

And we must construe the evidence in the light most favorable to Dr. Pohl and

draw every justifiable inference in his favor. See Tolan v. Cotton, 572 U.S. 650,

651, 134 S. Ct. 1861, 1863 (2014) (per curiam); Blue, 901 F.3d at 1357.

                                 IV. DISCUSSION

A.    Copyright Infringement

      To establish a claim of copyright infringement, a plaintiff must show two

elements: “(1) ownership of a valid copyright, and (2) copying of constituent

elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

Inc., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296 (1991). To satisfy Feist’s first

prong, a plaintiff must prove that the work is original and that he complied with

applicable statutory formalities for copyrights. Bateman v. Mnemonics, Inc., 79

F.3d 1532, 1541 (11th Cir. 1996). A certificate of registration “constitute[s] prima

facie evidence of the validity of the copyright and of the facts stated in the

certificate.” 17 U.S.C. § 410(c). “Once a plaintiff produces a certificate of


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registration, the burden shifts to the defendant to establish that the work in which

the copyright is claimed is unprotectable (for lack of originality).” Latimer v.

Roaring Toyz, Inc., 601 F.3d 1224, 1233 (11th Cir. 2010) (internal quotation

marks omitted); see also Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53,

58-60, 4 S. Ct. 279, 281-82 (1884) (explaining “the constitution is broad enough to

cover an act authorizing copyright of photographs, so far as they are

representatives of original intellectual conceptions of the author”).

      In the instant lawsuit, Dr. Pohl claimed that Officite infringed on his

copyright in the before and after photographs of Belinda. He produced a certificate

of copyright registration granted in November 2005, covering the photographs

posted on his website. Thus, he benefits from a rebuttable presumption that his

copyright is valid.

      To satisfy Feist’s second prong, a plaintiff must establish, as a factual

matter, that the alleged infringer actually copied plaintiff’s copyrighted material.

Bateman, 79 F.3d at 1541. “Factual proof of copying, however, is only an element

in satisfying the second prong of Feist.” Id. “[T]he plaintiff must also respond to

any proof advanced by the defendant that the portion of the copyrighted work

actually taken does not satisfy the constitutional requirement of originality.” Id. at

1542. Indeed, “[t]he sine qua non of copyright is originality.” Feist, 499 U.S. at

345, 111 S. Ct. at 1287. Whether a work is sufficiently original to warrant


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copyright protection is a question of fact. Home Legend, LLC v. Mannington

Mills, Inc., 784 F.3d 1404, 1409 (11th Cir. 2015).

      The Supreme Court has cautioned that it is not difficult to satisfy the

originality requirement for purposes of copyright protection. Feist, 499 U.S. at

345, 358, 111 S. Ct. at 1287, 1294. An author need only independently create the

work (as opposed to copy it from other works) and imbue it with “some minimal

degree of creativity.” Id. at 345, 111 S. Ct. at 1287. “To be sure, the requisite

level of creativity is extremely low; even a slight amount will suffice.” Id. And

“[t]he vast majority of works make the grade quite easily, as they possess some

creative spark, no matter how crude, humble or obvious it might be.” Id. (internal

quotation marks omitted).

      This is true of photographs. “Federal courts have historically applied a

generous standard of originality in evaluating photographic works for copyright

protection.” Latimer, 601 F.3d at 1234. Given the expansive standard of

originality for photographs, the “vast majority” of photographs qualify for

copyright protection, “by showing that the author exercised some personal choice

in the rendition, timing, or creation of the subject matter involved in the

photograph.” 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright

§ 2A.08[E][3][b], at 2A–109 (2018) (“Nimmer on Copyright”).




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      As to rendition, elements of originality in a photograph may include “posing

the subjects, lighting, angle, selection of film and camera, evoking the desired

expression, and almost any other variant involved.” Latimer, 601 F.3d at 1234

(internal quotation marks omitted). This Court has explained that, “[e]xcept for a

limited class of photographs that can be characterized as ‘slavish copies,’ courts

have recognized that most photographs contain at least some originality in their

rendition of the subject-matter.” Id.

      For example, this Court has noted that a photograph of a sculptural

artwork—the Bird Girl statue in Savannah’s Bonaventure Cemetery—was

sufficiently original for copyright protection, as it involved minimal creativity in

the “selection of lighting, shading, timing, angle, and film” for the picture. Leigh

v. Warner Bros., Inc., 212 F.3d 1210, 1215 (11th Cir. 2000). Likewise, we have

recognized that photographs of motorcycles taken for advertising materials were

copyrightable where the photographer “made all decisions regarding lighting,

appropriate camera equipment and lens, camera settings and use of the white

background, which was consistent with the industry practice he had noted in

studying other advertising photographs.” Latimer, 601 F.3d at 1230, 1233-35.

      And in Home Legend, this Court held that a digital photograph depicting 15

stained and time-work maple planks, which was created as a flooring design, was

sufficiently original because the creators imagined what raw wood might look like


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after years of wear, and then added marks to the wood planks and digital images to

render the design. Home Legend, 784 F.3d at 1407, 1410. That was sufficiently

creative to “hurdle the low bar of copyrightable originality.” Id. at 1410. Our

decisions teach that the elements that combine to satisfy Feist’s minimal “creative

spark” standard will vary depending on the photographer’s creative choices.

       That said, “[t]he measure of originality becomes more difficult to gauge as

one moves from sublime expression to simple reproduction.” SHL Imaging, Inc.

v. Artisan House, Inc., 117 F. Supp. 2d 301, 310-11 (S.D.N.Y. 2000) (holding that

photographs of mirrored picture frames taken for advertisements were sufficiently

original based on the totality of the precise lighting selection, angle of the camera,

lens and filter selection).2 In rare cases, some federal courts have held that a

photograph cannot satisfy the low bar to originality where “the author’s personal

choices as manifested in the photograph—the basis of any originality—are found

to be so banal and unthinking that they do not qualify as instances of originality in

rendition, timing, subject matter, and the like.” Nimmer on Copyright

§ 2A.08[E][3][b][iii], at 2A-112; see, e.g., Meshwerks, Inc. v. Toyota Motor Sales

U.S.A., Inc., 528 F.3d 1258, 1265 (10th Cir. 2008) (“[T]he facts in this case

unambiguously show that Meshwerks did not make any decisions regarding

       2
        We have recognized that the United States District Court for the Southern District of
New York has developed substantial expertise in copyright law as a result of the large number of
copyright cases litigated in that district each year. Latimer, 601 F.3d at 1234 n.7.

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lighting, shading, the background in front of which a vehicle would be posed, the

angle at which to pose it, or the like—in short, its models reflect none of the

decisions that can make depictions of things or facts in the world, whether Oscar

Wilde or a Toyota Camry, new expressions subject to copyright protection.”).

B.    Genuine Issues of Fact as to the Originality of Photographs

      With this legal background in mind and given the overall record, we

conclude that the district court erred in granting summary judgment to Defendant

Officite. In holding that Dr. Pohl’s photographs were not sufficiently creative or

original to receive copyright protection, the district court failed to view the

evidence at summary judgment in the light most favorable to Dr. Pohl with respect

to the facts of this case. By failing to credit evidence that contradicted some of its

factual conclusions, the court improperly “weigh[ed] the evidence” and resolved

disputed issues in favor of Defendant Officite. See Anderson, 477 U.S. at 249, 106

S. Ct. at 2511.

      First, the district court concluded that Dr. Pohl’s process of taking the

photographs of Belinda involved no “creative spark.” The district court drew this

assessment from Dr. Pohl’s statements in his deposition that (1) he did not

remember whether Belinda was sitting or standing when he photographed her or

what type of camera he used, (2) he posed Belinda by telling her to look at the

camera and smile, (3) the district court’s own observation that there is no creativity


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in having sufficient lighting in a room where Dr. Pohl took his photographs, and

(4) its conclusion that Dr. Pohl’s selection of photo angle was basic and

rudimentary.

      In his deposition, however, Dr. Pohl testified that he took Belinda’s “before”

picture with her sitting in a dentist chair and her “after” picture with her standing in

front of a photography screen. In his affidavit, Dr. Pohl also said that he was

solely responsible for choosing what type of camera to use to take Belinda’s

pictures and for positioning her. In staging the picture, Dr. Pohl instructed Belinda

to look directly at the camera, instead of an angled or profile perspective. He also

chose to take the pictures close-up, instead of capturing Belinda’s full face. And

he chose to photograph Belinda smiling, instead of, for example, retracting her lips

and photographing her teeth and gums only.

      Although the district court believed Dr. Pohl’s photo angle involved “the

most rudimentary and basic task for photographers since the era of the

daguerreotype,” the Supreme Court has made plain that “[o]riginality does not

signify novelty.” See Feist, 499 U.S. at 345, 111 S. Ct. at 1287. While Dr. Pohl

may not have carefully staged Belinda and adjusted the lighting as a professional

photographer might have, that is not the standard. The photographs need only

possess some minimal degree of creativity. Id. And it cannot be said that

Dr. Pohl’s pictures are “slavish copies” of an underlying work. See Latimer, 601


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F.3d at 1234; cf. Bridgeman Art Libr., Ltd. v. Corel Corp., 25 F. Supp. 2d 421,

426-27 (S.D.N.Y. 1998) (finding no originality in transparencies of paintings

where the goal was to reproduce those works exactly and thus to minimize or

eliminate any individual expression).

      Furthermore, Dr. Pohl selected the timing and subject matter of the

photographs—that is, he took the pictures before and after he completed his

cosmetic dentistry procedure on Belinda. And in cosmetic dentistry cases, like

Belinda’s, Dr. Pohl always takes the patient photographs himself, instead of having

his staff take them, because he is extremely picky and the cosmetic dentistry cases

are critical to him. Viewed in the light most favorable to Dr. Pohl, it is reasonable

to infer from this testimony that there was a precise manner in which Dr. Pohl

wanted Belinda’s before and after photographs to come out in order to showcase

his dentistry skills. Dr. Pohl had something in mind when he took the pictures.

That the photographs were intended solely for advertisement has no bearing on

their protectability. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239,

251, 23 S. Ct. 298, 300 (1903) (“A picture is none the less a picture, and none the

less a subject of copyright, that it is used for an advertisement.”). The Supreme

Court has long held that “the special adaptation of [] pictures to [] advertisement . .

. does not prevent a copyright. That may be a circumstance for the jury to consider

in determining the extent of [the parties’] rights, but it is not a bar.” Id. (“It would


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be a dangerous undertaking for persons trained only to the law to constitute

themselves final judges of the worth of pictorial illustrations, outside of the

narrowest and most obvious limits.”).

      In short, the overall record evidence created genuine issues of material fact

as to whether Dr. Pohl made sufficiently creative decisions in taking Belinda’s

photographs, “no matter how crude, humble or obvious” they may have been. See

Feist, 499 U.S. at 345, 111 S. Ct. at 1287.

      In holding otherwise, the district court primarily relied on Oriental Art

Printing, Inc. v. Goldstar Printing Corp., 175 F. Supp. 2d 542, 546 (S.D.N.Y.

2001), where the district court held that photographs of Chinese food dishes taken

for a take-out menu lacked the requisite originality to be copyrightable. A key to

that holding, however, was that the “plaintiffs fail[ed] to describe how the

photographs were taken, or how they were incorporated into the copyrighted

design as a whole. . . . While [the plaintiff’s president] state[d] that he worked

with a photographer on the ‘lighting’ and ‘angles,’ he provide[d] no description of

either the lighting or angles employed, or any desired expression.” Id. at 547.

      This case is not like Oriental Art. Here, Dr. Pohl described how the relevant

photographs were taken, including his choice of lighting, angles, and desired

expression—Belinda’s smile. Nor does this case involve purely descriptive

photographs of products, like the other non-binding cases mentioned by the district


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court. Nevertheless, our binding precedent makes clear that even descriptive

photographs of products, like a flooring design, can be sufficiently original to merit

copyright protection in any event. See Home Legend, 784 F.3d at 1407, 1410.

                                V. CONCLUSION

      For the foregoing reasons, we must reverse the district court’s grant of

summary judgment in favor of Defendant Officite and remand for further

proceedings consistent with this opinion.

      REVERSED AND REMANDED.




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