[Wikimedia-l] Copyright on Xrays

[Birgitte_sb at yahoo.com]

On Aug 22, 2012, at 9:31 AM, Anthony <wikimail at inbox.org> wrote:

> On Wed, Aug 22, 2012 at 10:22 AM, Anthony <wikimail at inbox.org> wrote:
>> On Wed, Aug 22, 2012 at 9:14 AM,  <Birgitte_sb at yahoo.com> wrote:
>>> Now clearly being able to judge that X is a utilitarian work is the more normal problem with
>>> this argument and why it is seldom used. Diagnostic images are one of the few clear-cut
>>> situations.
>> 
>> How do you distinguish whether or not it is a "diagnostic image", and
>> what makes it clear-cut?
> 
> If you define "diagnostic image" as "an image created solely for the
> purpose of making a diagnosis", then I suppose you've got a clear-cut
> utilitarian work.  On the other hand, this wouldn't include an X-ray
> which was made by someone who knew the X-ray was going to be used in a
> medical book.
> 
> 

If any such images exist where the technician knew to aim for something more than a mere depiction, I would agree that things become more questionable. if the technician is actually credited by the textbook I personally would find a different image to use, because why bother about it? But just the fact that the technician knew something might it be used in a larger work (x-rays don't have preview), wouldn't flip the copyright switch all by itself. Presumably the textbook in question is for instructing someone on how to interpret a diagnostic image. Presumably an actual diagnostic image would be selected for inclusion in such a textbook.  Now if a technician, while working to create diagnostic images, aimed to create an image that might *also* be displayed in an art gallery, then I wouldn't include that image in my general conclusion. But the image has to stand on its own; either was never copyrightable wherever it might be used, or it has always been copyrighted since the moment it was created until the copyright is waived or expires.

To reword what I said before the vast majority of X-ray images in existence are diagnostic images. There is no reason at all to purposefully search out X-rays that might land in some grey area.  If something makes a particular X-ray really stand out from the vast majority, something about that makes an editor want to use *that* one instead picking another from the mountain on diagnostic images. I would suspect that in such a case the uncopyrightable conclusion would be less certain than it is for the vast majority. We are never going to be able to actually determine the copyright on every single image uploaded. Never. Not even with infinite resources. The unknowable category wrt copyright is significant. It is just tiny subset of all works existing, but not so tiny that you will fail to come across it now and again. If an image is borderline and easily substituted; please refrain from wasting the communities' time and energy on it.  Substitute it with an equivalent image with superior provenance. 

Rule of thumb (that I haven't thought about very long and may later disagree with): If a specific image truly is uncopyrightable as a utilitarian image, then it should be very easy to replace with another equivalent image. If a specific image doesn't seem to have any *possible* equivalents, it probably isn't a utilitarian image.

Another rule of thumb: Most images, whatever they depict, are also *designed* to be pleasing to human aesthetics. That is usually the part that creates the copyright, the choices that are made to produce a certain aesthetic. When an image is designed without any consideration for aesthetics at all (i.e. an arm is placed on a plane and arranged at a certain angle in order to best diagnose any possible damage to the elbow joint), then it is a very good candidate to be considered a utilitarian image. Consider any stock story with a comic and a tragic version, consider all the reinterpretations that have been done of Shakespeare's plays. The new derivative is copyrighted on the weight of the aesthetic choices. Not idea of boy meets girl. Copyright is about how something is expressed.  The harder it is to express the same information with different aesthetics, whether it is the phone numbers for businesses in a list or the soundness of a joint on an image, the harder it is to attach copyright to any particular expression of this information.

Birgitte SB