[Wikimedia-l] Copyright on Xrays

Anthony wikimail at inbox.org
Wed Aug 22 21:41:27 UTC 2012

On Wed, Aug 22, 2012 at 4:15 PM, Todd Allen <toddmallen at gmail.com> wrote:
> On Wed, Aug 22, 2012 at 1:54 PM, Anthony <wikimail at inbox.org> wrote:
>> On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton <thomas.dalton at gmail.com> wrote:
>>> http://commons.wikimedia.org/wiki/File:Upperarm.jpg
>> http://commons.wikimedia.org/wiki/File:Arm.agr.jpg would probably be a
>> better example.
>> There's a good chance that wouldn't be considered copyrightable under US law.
> Even if it is, I think an X-ray would be quite different. In taking a
> photo of a subject's arm, the photographer must consider lighting,
> angle to which the arm is turned, the proper camera settings, how to
> find the exact arm that suits the purposes of the intended photo, etc.

Heh, I'd argue that the photo in question shows that the photographer
obviously does *not* have to make these considerations.  Looks like a
random arm in a random position against a plain white wall (hardly
creative), with auto everything.

> I think there would be just enough creativity in that arm shot, but
> it'd be close.

Yeah, I agree it'd be close.  I think it'd come down to the testimony
of the photographer.  If he claimed "oh, I chose a hairy arm because
X, and I opened my thumb because Y", maybe I'd buy it.  So if you're
feeling particularly copyright-paranoid, it's best to get explicit

> An X-ray, on the other hand, is made by a technician according to
> documented procedures. The arm is turned to the proper angle to see
> what the doctor wants to see, not to an angle that's aesthetically or
> artistically pleasing.

I could be wrong, but I'm not sure there's a requirement for aesthetic
or artistic purpose.  Non-fiction, software, legal contracts, etc.,
all have been held to be copyrightable.

> The image is taken according to standard and inflexible procedures.
> The technician is not exercising a bit of
> creativity in taking the image. In fact, the tech would likely get in
> trouble if (s)he DID decide to "get creative" with it.

That, on the other hand, is a very important point.

On the other other hand, it's not true of all X-ray images.  It's
certainly possible, for instance, to create an X-ray image with the
explicit purpose of putting it in an encyclopedia, or a journal, or
even a book of artwork.

Where it gets into grey area would be if the person created the X-ray
image knowing that it would be used in a book, but that it would also
be used for diagnostic purposes.

Either way, it's a question of fact what instructions were given to
the X-ray tech, as well as whether or not the tech followed them.

On Wed, Aug 22, 2012 at 5:25 PM, Thomas Dalton <thomas.dalton at gmail.com> wrote:
> On 22 August 2012 20:50, Anthony <wikimail at inbox.org> wrote:
>> It possibly has a very thin copyright.
> Copyright doesn't have thickness. Either it is copyrightable or it isn't.

Incorrect.  In some works, some aspects are copyrighted, and some
aspects are not.

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