Intellectual Property

Cityscapes And Sets Of Teeth Are Once Against Copyright-Protected

Photographers can savor the warmth of two pro-artist rulings and move forward with knowledge that their work will be protected.

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(Image via Getty)

Artists rejoice! In a heartening development, appellate courts have undone two of the more galling of last year’s anti-artist copyright decisions. The trend continues of the appellate courts righting the wrongs of the lower courts, who are often looking to clear space on the docket by disposing of pesky art-related cases.

The first case, Brammer v. Violent Hues, involved a ridiculous decision that I reviewed with wide-eyed horror and a soupçon of castigation back in 2018. Brammer is a professional photographer whose work — in the form of long-exposure cityscape photography — Violent Hues misappropriated and used without consent to promote its film festival. Despite all relevant facts reflecting that the use was commercial and obviously infringing, the district court was snookered by the made-up “transformative fair use” doctrine. Finding that Violent Hues had “transformed” the work and done so in “good faith,” the district court denied the artist his day in court and disposed of the case at the summary judgment stage.

On appeal, Brammer hit the festival planner with some high-caliber grammar, laying out the fundamental flaws in the lower court’s decision, which the Fourth Circuit then reversed in its entirety. In doing so, the Fourth chastised the lower court for applying its subjective intent as opposed to an objective intent to the fair use analysis, noting that the “mere difference in purpose is not quite the same thing as transformation.”

The appellate court then lambasted the lower court for finding that the infringer’s apparent “good faith” supported a fair use finding. It noted that while “bad faith” could preclude the exploitation of the fair use defense, there was no precedential support for the proposition that “good faith” was of assistance to the infringer. The Fourth noted the obvious — that copyright infringement is a strict liability defense and state of mind makes no difference to the issue of liability (though it does, of course, impact the damages analysis).

The appellate court writes that even if “good faith” was helpful to an infringer, the infringer in Brammer presented no evidence of good faith. To the contrary, as the decision points out, the evidence reflected behavior — copying a photograph with a copyright notice from the internet and publishing it on a commercial website — that was at the very least negligent. In the end, most of the conclusions reached by the lower court are reversed, with the Fourth concluding that none of the factors favor a finding of fair use. Brammer’s case is revived and will now proceed to trial (or settle).

In the second case, Dr. Mitchell A. Pohl DDS v. MH SUB I LLC dba “Officite,” the Eleventh Circuit in a per curiam decision reversed a Northern District of Florida court that had exercised its own artistic sensibilities by finding Doc Pohl’s dentition portraiture to be of such minor creative value to be outside of the purview of copyright protection.

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The teethy pictures at issue in the case may not have been gallery worthy or something that you or I would have hung above our respective mantels, but they certainly met the relatively low threshold for copyright protection. So long as the works contained some “creative spark,” as the Supreme Court once famously put it, the works are protectable, “no matter how crude, humble, or obvious” the spark may be.

And the fact that Doc Pohl’s photographs were copied is in itself a testament to their “creative spark.” Indeed, the evidence in the case reflected that no less than seven different dentists had purloined his pearly white photography.

Doc Pohl, who has a swinging practice out in Boca Raton (which some believe translates, coincidentally and in an apropos fashion, to Rat’s Mouth), Florida, had published his molar media on his office’s website to illustrate his clients’ lovely transitions from “before” to “after.” These clients, including one named Belinda, consented to his photography and the use of the images on his website.

And the good doctor’s photography of Belinda’s dental was enticing enough that Officite copied the works and posted them to its own website. In doing so, Officite failed to obtain the consent of Doc Pohl or Belinda. This conduct, though, was found to be non-infringing by the district court because the photographs of Belinda’s teeth were not sufficiently creative to warrant protection.

On appeal, though, the Eleventh homes in on the fact that Doc Pohl, in creating his Belinda suite of photographs, was solely responsible for choosing the camera, lighting, photo angle, and positioning of his subject and exercised due care in doing so. Citing to a case involving stained maple plank flooring, which the Eleventh Circuit had found protectable, the panel reversed, concluding that Doc Pohl should enjoy copyright protection for this incisor imagery.

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And in reversing, the Eleventh took a few digs, singling out the fact that the court had relied on Doc Pohl being unable to remember the brand of camera he used as a fact militating against permitting copyright protection for his work. And they wrote that the district court’s “own observation” that the lighting of a photograph involves no creativity was off-base. As in Brammer, the appellate court found little to like in the lower court’s decision and reversed and remanded for trial.

Two down, many others to go. But, for this week in May, at least, photographers can savor the warmth of two pro-artist rulings and move forward with knowledge that their work will be protected, no matter which less-popular body parts are depicted.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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