In order to be eligible for protection under US copyright law, a creative work must be "sufficiently original" to merit protection. But the Supreme Court has held that "the requisite level of creativity is extemely low" and the "vast majority of works make the grade quite easily .. . no matter how crude, humble or obvious."

Photography is one creative area where the originality requirement has been tested. While everyone would agree that many photographic works are highly creative and original, the question becomes murkier when the photograph seems mundane. This brings us to the recent decision by the Court of Appeals for the 11th Circuit in Pohl v. MH SUB I LLCR, 2019 WL 1950003 (11th Cir. May 1, 2019), a case addressing the question whether "before and after" photographs taken by a dentist of his patient's teeth qualified for copyright protection.

Before turning to what happened in the Pohl case, as a general matter, courts looking at the question of copyrightability of photographs have identified certain elements of photography that may be considered in determining whether a particular work meets the requirement of originality, including the photographer's choices in posing or arranging the subjects of her photo, timing, lighting, focus, shading, camera, lens, film, background, and other factors. Most courts applying these factors have concluded that there was sufficient originality for protection. One notable exeption was a case involving "photographic transparencies" of public domain artworks where the goal of the creator was to replicate the originals as closely as possible.

In the Pohl case, the district court had held that the dentist's photographs did not meet the test of originality. But the Court of Appeals disagreed, noting the evidence that had been introduced that the dentist had chosen which camera to use and how to position his patient. He also had instructed the patient "to look directly at the camera, instead of an angled or profile perspective." Moreover, the dentist "chose to take the pictures close-up, instead of capturing [his patient's] full face. And he chose to photograph [her] smiling, instead of, for example, retracting her lips and photographing her teeth and gums only."

The Court of Appeals did not, however, find that the photographs in question were sufficiently original as a matter of law, but rather remanded the case to the district court for further consideration as to whether the dentist made sufficient creatiuve decisions to render his before and after photographs protectible.

The upshot of the Pohl decision may be that the bar to copyright protection for photographs remains extremely low. But a question remains whether there is some point at which the requirement for originality is not met. We now live in a world where most people have extremely sophisticated and highly automatic cameras on their phones, can take pictures with virtually no thought or effort and then make them publically available with the push of a button. Many of the photos taken in this way involve considerable creativity and may easily meet the requirement of originality. But is every such picture sufficiently original, irrepective of how little thought was put into its creation?