Pohl v. MH Sub I LLC, 050119 FED11, 18-13233

Docket Nº:18-13233
Opinion Judge:PER CURIAM
Party Name:MITCHELL A. POHL, DDS, Plaintiff-Appellant, v. MH SUB I LLC, d.b.a. OFFICITE, Defendant-Appellee.
Judge Panel:Before TJOFLAT, JORDAN and HULL, Circuit Judges.
Case Date:May 01, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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MITCHELL A. POHL, DDS, Plaintiff-Appellant,

v.

MH SUB I LLC, d.b.a. OFFICITE, Defendant-Appellee.

No. 18-13233

United States Court of Appeals, Eleventh Circuit

May 1, 2019

DO NOT PUBLISH

Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 4:17-cv-00181-MW-CAS

Before TJOFLAT, JORDAN and HULL, Circuit Judges.

PER CURIAM

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.

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 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.

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...

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