RE: Are x-rays copyrightable?[Scanned by MAIL]

["James S. Tyre" <jstyre@xxxxxxxxxx>]

One might analogize to Bridgman Art Library v. Corel, 36 F.Supp.2d 
191 (S.D.N.Y. 1999):

There is little doubt that many photographs, probably the 
overwhelming majority, reflect at least the modest amount of 
originality required for copyright protection. "Elements of 
originality ... may include posing the subjects, lighting, angle, 
selection of film and camera, evoking the desired expression, and 
almost any other variant involved."*197FN39 But "slavish copying," 
although doubtless requiring technical skill and effort, does not 
qualify.FN40 As the Supreme Court indicated in Feist, "sweat of the 
brow" alone is not the "creative spark" which is the sine qua non of 
originality.FN41 It therefore is not entirely surprising that an 
attorney for the Museum of Modern Art, an entity with interests 
comparable to plaintiff's and its clients, not long ago presented a 
paper acknowledging that a photograph of a two-dimensional public 
domain work of art "might not have enough originality to be eligible 
for its own copyright." FN42

In this case, plaintiff by its own admission has labored to create 
"slavish copies" of public domain works of art. While it may be 
assumed that this required both skill and effort, there was no spark 
of originality-indeed, the point of the exercise was to reproduce the 
underlying works with absolute fidelity. Copyright is not available 
in these circumstances.

At 04:05 PM 2/7/2008 -0600, Williamson, Lori B. wrote:
> I would have to play the devil's advocate here and say I don't think it
> would be copyrightable.  I see no creativity or originality at all--the
> point of an xray is to not be creative, but just to represent exact copy
> of a common human trait.
>
> Any other opinions?
>
> Lori
>
> -----Original Message-----
> From: Jason Griffey [mailto:Jason-Griffey@xxxxxxx]
> Sent: Thursday, February 07, 2008 2:59 PM
> To: Heather Williams; digital-copyright@xxxxxxxxxxxxxx
> Subject: RE: Are x-rays copyrightable?[Scanned by MAIL]
>
> Legally, I think it would be hard to distinguish between an Xray and
> some
> other type of photographic method. Certainly X-Rays have been used as
> artistic
> expression, and even a routine xray would qualify, I think.
>
> Jason
>
> -----Original Message-----
> From: Heather Williams [mailto:hrwilli@xxxxxxxxx]
> Sent: Thu 2/7/2008 2:01 PM
> To: digital-copyright@xxxxxxxxxxxxxx
> Subject: Are x-rays copyrightable?
>
> Is an x-ray sufficiently creative to be copyrightable?  Would an image
> of an
> x-ray in a medical text be copyrighted?   What do you all think?
>
>
>
>
>
> Thanks for any help!
>
> Heather
>
>
>
> _______________________
>
> Heather R. Williams
>
> Copyright Specialist and Rights Management Coordinator
>
> Emory University Libraries
>
> Robert W. Woodruff Library
>
> 540 Asbury Circle
>
> Atlanta, GA 30322-2870
>
> Tel: 404.727.0127
>
> Fax: 404.727.1655


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James S. Tyre                                      jstyre@xxxxxxxxxx
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Co-founder, The Censorware Project             http://censorware.net
Policy Fellow, Electronic Frontier Foundation     http://www.eff.org