Dentist’s failed suit demonstrates a copyright’s bite needs more than teeth

You can copyright just about any design, right? Not quite.
Those who think there are no teeth in copyright law’s originality requirement only need to look at Dr. Mitchell Pohl’s before-and-after photos portraying his cosmetic dental work. Dr. Pohl sued a competitor he found using his photos, but the competitor claimed the photos weren’t original enough for copyright.
The court agreed in Pohl v. MH SUB I, LLC, finding that Dr. Pohl’s two “direct shots” of his patient’s teeth were purely utilitarian, like pictures of food plates on a Chinese restaurant’s menu. They lacked the minimal required “creative spark.”
Photographs are often viewed as creative because of the photographer’s creative choices in angles, lighting, posing, and composition. But because Dr. Pohl couldn’t even remember the camera, the lighting, or whether the patient was sitting or standing, he made out a weak case for creative choices. To the court, the photos were merely functional: “To the extent he posed her for the camera, it was to tilt her head, lift her chin up or down, instruct her to smile, or to tell her to look at the camera.” In sum, “There is nothing remotely creative about taking close-up photographs of teeth.”
So what is sufficiently original for copyright? The Copyright Office has developed rules and guidelines concerning many common designs, such as designs involving common geometric shapes. In a seven-page ruling in January 2019, the office’s review board rejected registration of a set of toys made up of three-dimensional tiles, including triangles and squares of different sizes. Analyzed both separately (as simple shapes with solid coloration) and as a set, they lacked “adequate expressive content” or the required “modicum of creativity.”
A month earlier, the review board approved registration of another work made up of geometric shapes — a sculptural work consisting of two wooden platforms, an arch of tetrahedrons, and two trapezoidal boxes. The artist met the creativity threshold with a combination of multiple shapes into “a design that illustrates creative choice in the positioning of shapes in the overall Work.” But this work barely made it — the board cautioned that the copyright was “thin.”
For more information, there’s a chapter in the Copyright Office Compendium on this subject. Or you can just remember: “No way” for teeth or triangles; a thin “OK” for tetrahedrons.

Oral complications are rare in older women treated for osteoporosis Study

Oral complications are rare in women taking medications for postmenopausal osteoporosis, according to a study published in the Endocrine Society's Journal of Clinical Endocrinology & Metabolism.
An oral complication called osteonecrosis of the jaw (ONJ) is exposed bone in the jaw that is slow to heal (8 weeks or longer, with effective treatment), usually after a major dental procedure. It was first reported in 2003 in patients with advanced cancer receiving high doses of zoledronic acid and denosumab (medications also used to treat osteoporosis). Rates in cancer patients receiving high doses are around 1 percent to 2 percent per year. ONJ is less common in patients with osteoporosis receiving lower doses of these medications (about one case every 10,000 patient-years), yet there is still a lot of concern among dentists and patients.
"Our study covered the seven-year extension of the denosumab pivotal trial. We found dental procedures were common among these patients, but ONJ was rare with only 5.2 cases for every 10,000 patient-years. Not only was ONJ rare, but the 11 cases where the outcome is known have healed," said the study's lead author, Nelson Watts, M.D., of Mercy Health in Cincinnati, Ohio. "The ONJ cases typically followed dental extractions or poorly fitting dentures. Of the 212 patients with dental implants, only one developed ONJ, and she continued denosumab, healed her ONJ, and still has the implant."
Researchers used data from the seven-year FREEDOM Extension trial to assess information on oral procedures and cases of ONJ in women taking denosumab for postmenopausal osteoporosis. They found 45 percent of patients had at least one invasive dental procedure, but the overall rate of ONJ was low. ONJ incidence was higher in those reporting a dental procedure.
"My hope is our study will help patients and oral care providers be better informed about the low risk of ONJ compared to the fracture prevention benefits of antiresorptive therapy in women with postmenopausal osteoporosis," Watts said.

Patients with TMD and fibromyalgia report most benefit from self-care techniques

While oral appliances such as splints and bite guards are the most common treatment for facial pain from temporomandibular disorders (TMD), patients rate them as less helpful than self-care treatments, such as jaw exercises or warm compresses, finds a new study by researchers at NYU College of Dentistry.

The study, published in the journal Clinical Oral Investigations, suggests that self-care techniques should be the first line of treatment for muscle-related TMD.

TMD (sometimes called TMJ after the temporomandibular joint) is a group of common pain conditions that occur in the jaw joint and surrounding muscles. The muscular condition, called myofascial temporomandibular disorder (mTMD), affects over 10 percent of women. People with TMD often have other pain conditions; research shows that 7 to 18 percent of people with TMD also meet criteria for fibromyalgia, a condition characterized by widespread pain.

Dentists and patients use a variety of treatments to manage facial pain, including oral appliances, such as splints and bite guards, pain medications, such as nonsteroidal anti-inflammatory drugs, and self-care techniques, such as jaw exercises and warm compresses.

"Oral appliances are a common first-line treatment for TMD, despite mixed research results regarding their benefit. Even when oral splints have been found to have some benefit, they have not been found as effective for patients who also have widespread pain in the treatment of mTMD," said Vivian Santiago, assistant research scientist in the Department of Oral and Maxillofacial Pathology, Radiology, and Medicine at NYU College of Dentistry and the study's lead author.
In this study, the researchers examined what non-medication treatments women with mTMD use to manage their pain and how effective patients perceive the treatments to be. The researchers examined and interviewed a total of 125 women with mTMD, including 26 who had both mTMD and fibromyalgia, in order to determine whether treatment differed for patients with widespread pain.
The most common treatments reported were oral appliances (used by 59 percent of participants), physical therapy (54 percent), and at-home jaw exercises (34 percent). Less common treatments included acupuncture (20 percent), seeing a chiropractor (18 percent), trigger point injection (14 percent), exercise or yoga (7 percent), and meditation or breathing (6 percent). Participants often used more than one treatment (2.4 on average).
Participants reported the most improvement in their pain from common self-care activities, including jaw exercises, yoga or exercise, meditation, massage, and warm compresses, with over 84 percent reporting that these activities helped them at least a little. In contrast, only 64 percent of those who used oral appliances--the most popular treatment--reported that they helped at least a little. A small proportion of women who used oral appliances (11 percent) said that oral appliances made their pain worse, an area that warrants further research.
"Oral appliances did not outperform self-management care techniques in improving facial pain. Our results support the use of self-management as the first line of treatment for mTMD before considering more expensive interventions," said Karen Raphael, professor in the Department of Oral and Maxillofacial Pathology, Radiology and Medicine at NYU College of Dentistry and the study's co-author.
The researchers did not find significant differences between the number of treatments reported by women with and without fibromyalgia. While the use of alternative treatments, such as acupuncture and seeing a chiropractor, was reported more frequently among women with fibromyalgia and mTMD, they did not necessarily find more relief. Interestingly, physical therapy was used equally by women with and without fibromyalgia, but self-reported improvement tended to be higher for those with fibromyalgia.
"While fibromyalgia is diagnosed by a physician, usually a rheumatologist, TMD is usually diagnosed and treated by a dentist. Our research suggests that dentists should ask patients with facial pain about whether they also have widespread pain, as this could provide more information to help plan their treatment," said Santiago.
"Although clinical trials are critical for understanding treatment efficacy, our study highlights the importance of listening to people suffering with TMD to understand which treatments are the most beneficial," added Raphael.