[Wikimedia-l] Copyright on Xrays

[Birgitte_sb at yahoo.com]

On Aug 22, 2012, at 4:41 PM, Anthony <wikimail at inbox.org> wrote:

> 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
> permission.
> 
>> 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.

I think you are overestimating the very minimal amount of creativity that is required to here. The aesthetic choice between noting a pause as a period vs. a dash vs. a semi-colon has been upheld as copyrightable. There is aesthetics within non-fiction and legal documents, whether or not they are primary consideration.

> 
>> 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.
> 

I disagree here, the intention of the creator has no more to do with copyright than effort expended. It all hangs on whether the work as executed contains some newly created creative expression of the information. Whether it resulted from purposeful or subconscious choices do not matter. 

> 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.
> 
+1

Birgitte SB