[Wikimedia-l] Copyright on Xrays

[Anthony]

On Fri, Aug 24, 2012 at 9:59 AM, Anthony <wikimail at inbox.org> wrote:
> At this point I'm starting to doubt whether or not Meshwerks even applies.

Heh, I'm reading Meshwerks (which I believe can be easily
distinguished from X-ray images for many reasons, not the least of
which is that it wasn't about a photograph, but about "digital
wire-frame computer models"), and I came across this gem:

"In addition, the work must "possesses at least some minimal degree of
creativity," Feist, 499 U.S. at 345; see also William F. Patry, Patry
on Copyright § 3:27 ("both independent creation and a minimal degree
of creativity are required"), though this is not to say that to count
as containing a minimal degree of creativity a work must have
aesthetic merit in the minds of judges (arguably not always the most
artistically discerning lot)."

There's also this:

"But what can be said, at least based on received copyright doctrine,
to distinguish an independent creation from a copy? And how might that
doctrine apply in an age of virtual worlds and digital media that seek
to mimic the "real" world, but often do so in ways that undoubtedly
qualify as (highly) original?"

which pretty much directly counters the claim that an image made to
objectively depict reality is not copyrightable.

Here's another distinguishing feature of Meshwerks, from Meshwerks
itself:  "the facts in this case unambiguously show that Meshwerks did
not make any decisions regarding lighting, shading, the background in
front of which a vehicle would be posed, the angle at which to pose
it, or the like -- in short, its models reflect none of the decisions
that can make depictions of things or facts in the world, whether
Oscar Wilde or a Toyota Camry, new expressions subject to copyright
protection"

Meshwerks is not applicable case law.  I based my earlier comment
about it on the summary at
https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 , which I
have now found is not what the case actually says.  I thought that
"there is no copyright protection when the purpose is to faithfully
represent the underlying object" was a quote from the case.  It isn't,
and in fact the case doesn't say that at all.

I very much appreciate that "people making copyright decisions in the
wikis may be using this list as a tool for making those decisions".
That's why I think it is important to point out flaws in the reasoning
of posts made here, even if I do agree with their ultimate conclusion.