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

["Harper, Georgia K" <gharper@xxxxxxxxxxxxxxxxx>]

If I had lots of time, I would look up the drivers license case. I
vaguely recall it from the semester I taught copyright at UT's law
school. I recall being shocked to think that a drivers' license photo
could be copyrighted. It's totally mechanical, it's functional, it's
automatically done by the camera with no input from the operator of the
camera. You have no control over lighting, etc.

If those are copyrighted, then the next question is, what about photos
that are taken by a camera that is completely programmed (like redlight
cameras, or cameras activated by motion). My guess is going to be that
they will be protected. The courts seem to default to providing
protection if at all possible. I know about Bridgeman. I know about
Feist. I just don't think xrays fit their criteria. I also think it's
absolutely absurd that xrays should even be considered copyrightable. I
just don't think the courts agree with me.

Of course, we can't resolve this. There are good arguments on both sides
and I don't' know of an xray case. But that just brings it down to a
matter of risk assessment, and I personally think risk is low which
pretty much moots the legal issue except for those who can tolerate no
risk.

G


Georgia Harper
Scholarly Communications Advisor
University of Texas at Austin Libraries
512.495.4653; 512.971.4325 (c)
-----Original Message-----
From: James S. Tyre [mailto:jstyre@xxxxxxxxxx]
Sent: Thursday, February 07, 2008 4:30 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: RE: Are x-rays copyrightable?[Scanned by MAIL]

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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