Are Photographs of Utilitarian Objects Copyrightable?

Pohl v. MH Sub I, LLC d/b/a Officite (N.D.Fla., June 20, 2018)

U.S. District Judge Mark Walker of the Northern District of Florida determined that no reasonable jury could find that a plaintiff-dentist’s before-and-after photos of his patient’s teeth are sufficiently creative or original to warrant copyright protection.

On summary judgment, the court acknowledged that for copyright protection, “the requisite level of creativity is extremely low; even a slight amount will suffice…. The 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.”

Nonetheless the court held that copyright protection will not extend to photographs lacking any creativity or originality primarily because they serve a utilitarian end — to identify goods or services that a viewing customer can expect from the business.

This is not to say that there is, or should be, a categorical rule against copyright protection for photographs used in the context of advertising or marketing activities. They must, however, demonstrate some “artistic touch.”  Photographs may exhibit the “creative spark” warranting copyright protection.

U.S. Copyright Office Bulletin FL-103

A “useful article” is designed to serve a utilitarian purpose. Examples include the overall shape or design of a car, an airplane, clothing, a food processor, a television set or golf ball. Useful articles can have both copyrightable and uncopyrightable features. Copyright never protects the utilitarian aspects of an article.

Copyright may, however, protect authorship in pictorial, graphic or sculptural design that can be identified separately from, or exist independently of, the utilitarian aspects of the article.

A photograph, that portrays, describes or explains a useful article may be protected by copyright, but the protection would be limited to any art or text and would not extend to the useful article itself. Similarly, copyright protection for a pattern for making a useful article may extend to any descriptive photos, but it would not extend to the design and manufacture of the article itself.

The Court tests for copyright protection:

For photographs:

1. Not a photograph of anything utilitarian
2. Needs an artistic touch
3. Needs a creative spark

The Copyright Office states:

1. A photograph that portrays a utilitarian article may be protected by copyright
2. May extend copyright protection to any descriptive photographs