Dentist Mitchel Pohl's patient teeth before and after. Courtesy photos.

A plaintiff dentist who elected to toss his own copyright infringement lawsuit weeks before trial, after the defense produced damaging evidence, faces a choice from Chief U.S. District Judge Mark E. Walker in the Northern District of Florida.

The judge agreed to dismiss the case without prejudice on one condition: the plaintiff would have to pay the defendant's attorney fees and costs for two and a half years of litigation.

"The plaintiff, therefore, has two options," the ruling said. "He can either decline to dismiss, decline to pay and take his chances at trial; or he can accept the dismissal with the condition set forth in this order."

The ruling didn't offer much to smile about for Boca Raton cosmetic dentist Mitchel Pohl, who sued an internet media company in April 2018 after discovering that before-and-after shots of one of his patients, referred to as "Belinda," appeared on multiple websites without his permission.

Walker's ruling is the latest twist in a case that was dismissed in June 2018 and revived in May.

While Walker had ruled the photos of Belinda's teeth weren't creative or original enough to merit copyright protection, the U.S. Court of Appeals for the Eleventh Circuit found that that was a question for jurors to answer.

A trial was scheduled for October, but in the weeks before, defense attorneys Matthew Nelles and Adriana Kostencki of Nelles Kostencki in Fort Lauderdale acquired some crucial information from the U.S. Copyright Office: a string of emails that were game-changing for his client, MH SUB I LLC, known as Internet Brands.

The plaintiff's attorney, William Hollimon of Hollimon P.A. in Tallahassee, did not respond to requests for comment by deadline.

According to Monday's ruling, the dentist had previously claimed that he'd mistakenly entered the wrong year on a copyright registration form for his website in 2005. He alleged that he wrote 2000 instead because he'd innocently misinterpreted of the application form, an explanation Walker had accepted.

But Walker found Pohl's team had failed to disclose email evidence that showed an examiner from the Copyright Office had asked him whether he wanted to change the date to 2005, but he chose to keep it at 2000.

"In sum, plaintiff failed to provide relevant evidence to defendant, despite defendant's request, which was in their possession and which could have resolved this case on summary judgment," Walker wrote.

The revelation bolsters Nelles long-held argument that because the teeth photos were taken in 2004, they didn't fall under Pohl's 2000 copyright protection.

"Obviously, in the year 2000, these 2004 photographs didn't exist," Nelles said. "So whatever website he had in the year 2000 for sure did not contain these photographs."

When the plaintiff then moved to dismiss without prejudice, Walker made "a reasonable inference that plaintiff seeks dismissal to avoid an expected adverse ruling."

"Strikingly, plaintiff offers no reasons for seeking voluntary dismissal of this lawsuit, claiming only that he seeks dismissal 'for a variety of reasons that are not relevant to this motion,'" the order said.

'We live for these types of issues'

Matthew Nelles of Nelles Kostencki. Courtesy photo.

Nelles said he discovered the emails in October after independently asking the Copyright Office for documents.

"We never envisioned that we would come across such an important document as those emails," Nelles said.

The ruling could be significant for the copyright arena, according to Nelles, as the case touches on somewhat novel and unexplored areas of law, including whether or not the information on a registration certificate holds more authority than the actual work submitted to the copyright office.

"The case for us has been a highly intriguing case because of such core, important copyright issues," he said. "This is sort of what we litigate IP and copyright cases for. We live for these types of issues to arise and to have to deal with them."

Also unusual is that the Copyright Office didn't simply accept the deposited material, but actually asked Pohl questions about it to clarify his intentions.

"He wrote an email back saying, 'This is exactly what I want, I want the 2000.' It was deliberate," Nelles said.

It's been an unusually expensive case for the defense, mottled with discovery, motions, appellate work and trial preparation.

"The attorney fees substantially outweigh any potential damages," Nelles said.

The plaintiff has until Nov. 12 to make a decision.

 

Read the court order:

Read more: How to Lose a Copyright Case: Court Finds Photos of Teeth Lack Sufficient Bite

Florida Court to Tackle Copyright Question Over Embedded Tweets