[Wikimedia-l] Copyright on Xrays

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[Wikimedia-l] Copyright on Xrays

jmh649
A question about copyright, who owns the copyright on Xrays and are they
even copyrightable? I have uploaded a few of them and no one seems to know
the answer. I guess the options would be:

1) They are in the public domain
https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 and
http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom#Works_eligible_for_protection

2) The X ray tech who took the image
3) The person / institution who paid to have the image taken
 a) The HMO or patient if in the USA
 b) The government if in many parts of the world
4) The doctor who ordered the image
5) The doctor who read the image
6) The hospital / shareholders of the hospital who owns the equipment
7) All of the above / some of the above / none of the above

Would be good to have a legal position on this.
--
James Heilman
MD, CCFP-EM, Wikipedian

The Wikipedia Open Textbook of Medicine
www.opentextbookofmedicine.com
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Re: [Wikimedia-l] Copyright on Xrays

Thomas Morton
  2) The X ray tech who took the image

> 3) The person / institution who paid to have the image taken
>  a) The HMO or patient if in the USA
>  b) The government if in many parts of the world
> 4) The doctor who ordered the image
> 5) The doctor who read the image
> 6) The hospital / shareholders of the hospital who owns the equipment
> 7) All of the above / some of the above / none of the above
>
>
I'd suggest; 7.

The person who took the image, by the skilled use of X-Ray equipment
probably holds copyright.

But the image may be covered by data protection laws, and the employees
contract may also deal with things such as these.

And finally the individual being imaged as personality/privacy rights.

So; copyright with the tech, but that is only the tip of the iceberg :)

Tom
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Re: [Wikimedia-l] Copyright on Xrays

Thomas Dalton
In reply to this post by jmh649
On 20 August 2012 12:08, James Heilman <[hidden email]> wrote:
> A question about copyright, who owns the copyright on Xrays and are they
> even copyrightable? I have uploaded a few of them and no one seems to know
> the answer. I guess the options would be:

Why is it any different to any other work created during employment?
The employer owns the copyright in almost all those cases. The client
(patient, HMO, whatever) only owns it is there is a specific
contractual agreement to that effect, and I can't see why there would
be. It's the same as when pay a professional photographer to take nice
photos of you - they own the copyright unless you explicitly buy it
off them.

In countries with public healthcase, the employer may be a public body
and there may be different rules (are x-rays taken by NHS
radiographers under Crown Copyright?). There may also be special rules
in some countries regarding medical records, although I wouldn't
expect them to remove the copyright (just give a statutory license for
certain uses).

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Re: [Wikimedia-l] Copyright on Xrays

Tomasz Ganicz
In reply to this post by jmh649
2012/8/20 James Heilman <[hidden email]>:

> A question about copyright, who owns the copyright on Xrays and are they
> even copyrightable? I have uploaded a few of them and no one seems to know
> the answer. I guess the options would be:
>
> 1) They are in the public domain
> https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 and
> http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom#Works_eligible_for_protection
>
> 2) The X ray tech who took the image
> 3) The person / institution who paid to have the image taken
>  a) The HMO or patient if in the USA
>  b) The government if in many parts of the world
> 4) The doctor who ordered the image
> 5) The doctor who read the image
> 6) The hospital / shareholders of the hospital who owns the equipment
> 7) All of the above / some of the above / none of the above
>

I head a discussion about it (actually about mainly histopalogical
microscopic pictures of human tissues but also about other medical
documentary photos) with some lawers and the conclusion was, that such
a pictures from legal POV are not different than just any others. So:
a) if the picture is taken automatically by machine in routine way (in
case of X-ray, NMR and some other techinques this is usually atomatic
and routine) - they are not copyrightable, as this is not any creative
work.
b) if the picture is taken by human using machine (for example USG or
pictures taken with in-body camera) - the situation is just like with
normal picture taken by camera - the author is the person who took the
picture
c) if the author is an employee who took a picture as part of his/her
normal job obligations the copyrights (at least in Poland) belongs
automatically to the employer. (usually hospital or other medical
institution).
d) if the picture was made as a work by hire (for example in private
USG operator) - who holds the copyright belongs what is writen in
operator regulations - and if the regulations do not contains any
points regarding transfer of copyright - it belongs to the operator.

Of course, except copyright owner agreement - publication of such the
pictures need acceptation by the subject of them - as it is usually a
part of medical documentation which - at least in Poland - is
confidential.


--
Tomek "Polimerek" Ganicz
http://pl.wikimedia.org/wiki/User:Polimerek
http://www.ganicz.pl/poli/
http://www.cbmm.lodz.pl/work.php?id=29&title=tomasz-ganicz

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Re: [Wikimedia-l] Copyright on Xrays

Thomas Dalton
On 20 August 2012 12:30, Tomasz Ganicz <[hidden email]> wrote:
> a) if the picture is taken automatically by machine in routine way (in
> case of X-ray, NMR and some other techinques this is usually atomatic
> and routine) - they are not copyrightable, as this is not any creative
> work.

I think you are underestimating the skill involved in medical imaging.
For example, if you want to take an x-ray of a broken arm, you need to
make sure the arm is oriented in the right way and the x-ray is at the
right angle so that the break is clearly visible. That sounds like
enough creativity to create copyright to me.

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
In reply to this post by jmh649
Under US law (I know very little about the law of other countries):

Unless the patient somehow contributed creatively to the image (broke
his bones in a certain creative pattern), it's certainly not the HMO
or patient.  If the X-ray tech is an employee, then it's certainly not
the X-ray tech.

The possibilities would be:

1) Public domain
2) Anyone who contributed creatively to the image (I guess that would
be the X-ray tech?), if they weren't an employee
3) The employer of 2, if they were an employee.
4) Someone who commissioned the work of 2 or 3 for part of a
collective work or compilation.
5) Someone who was assigned copyright in a written transfer.

I would say 2 or 3 would probably be the most likely.

On Mon, Aug 20, 2012 at 7:08 AM, James Heilman <[hidden email]> wrote:

> A question about copyright, who owns the copyright on Xrays and are they
> even copyrightable? I have uploaded a few of them and no one seems to know
> the answer. I guess the options would be:
>
> 1) They are in the public domain
> https://open.umich.edu/wiki/Casebook#Radiograph_.28X-Ray.29 and
> http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom#Works_eligible_for_protection
>
> 2) The X ray tech who took the image
> 3) The person / institution who paid to have the image taken
>  a) The HMO or patient if in the USA
>  b) The government if in many parts of the world
> 4) The doctor who ordered the image
> 5) The doctor who read the image
> 6) The hospital / shareholders of the hospital who owns the equipment
> 7) All of the above / some of the above / none of the above
>
> Would be good to have a legal position on this.
> --
> James Heilman
> MD, CCFP-EM, Wikipedian
>
> The Wikipedia Open Textbook of Medicine
> www.opentextbookofmedicine.com
> _______________________________________________
> Wikimedia-l mailing list
> [hidden email]
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/wikimedia-l

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Re: [Wikimedia-l] Copyright on Xrays

David Gerard-2
In reply to this post by Thomas Dalton
I'm sure that collectively we can bloviate with the best of 'em on the
topic - but do we have any case law whatsoever anywhere on the topic
that might give real-world pointers?


- d.

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
On Mon, Aug 20, 2012 at 7:47 AM, David Gerard <[hidden email]> wrote:
> I'm sure that collectively we can bloviate with the best of 'em on the
> topic - but do we have any case law whatsoever anywhere on the topic
> that might give real-world pointers?

It's a question of fact, not a question of law.

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Re: [Wikimedia-l] Copyright on Xrays

David Gerard-2
On 20 August 2012 12:50, Anthony <[hidden email]> wrote:
> On Mon, Aug 20, 2012 at 7:47 AM, David Gerard <[hidden email]> wrote:

>> I'm sure that collectively we can bloviate with the best of 'em on the
>> topic - but do we have any case law whatsoever anywhere on the topic
>> that might give real-world pointers?

> It's a question of fact, not a question of law.


Then any real-world examples of the question arising.


- d.

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Re: [Wikimedia-l] Copyright on Xrays

Tomasz Ganicz
2012/8/20 David Gerard <[hidden email]>:

> On 20 August 2012 12:50, Anthony <[hidden email]> wrote:
>> On Mon, Aug 20, 2012 at 7:47 AM, David Gerard <[hidden email]> wrote:
>
>>> I'm sure that collectively we can bloviate with the best of 'em on the
>>> topic - but do we have any case law whatsoever anywhere on the topic
>>> that might give real-world pointers?
>
>> It's a question of fact, not a question of law.
>
>
> Then any real-world examples of the question arising.
>

The case I was writting was a set of human tissue pictures taken by a
members of research group working in university clinic in my city.

This is just an example:

http://commons.wikimedia.org/wiki/File:Adenocarcinoma_highly_differentiated_%28rectum%29_H%26E_magn_400x.jpg

I had discussion about it with our (Wikimedia Polska) lawer and the
legal department of the clinic. First of all the research group had
agreement from all his patients to publish this pictures in anonymous
way (i.e. not revealing to whom belongs the photographed tissues).
Then - they claimed, that although their work might be copyrightable,
they resigne from any copyright claims and finally their decission was
approved by clinic authorities (i.e. clinic had also resign from any
copyright claims no matter if they are applicable or not).

--
Tomek "Polimerek" Ganicz
http://pl.wikimedia.org/wiki/User:Polimerek
http://www.ganicz.pl/poli/
http://www.cbmm.lodz.pl/work.php?id=29&title=tomasz-ganicz

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
In reply to this post by Thomas Dalton
On Mon, Aug 20, 2012 at 7:39 AM, Thomas Dalton <[hidden email]> wrote:
> I think you are underestimating the skill involved in medical imaging.
> For example, if you want to take an x-ray of a broken arm, you need to
> make sure the arm is oriented in the right way and the x-ray is at the
> right angle so that the break is clearly visible. That sounds like
> enough creativity to create copyright to me.

Against this would be the case cited in the OP (528 F.3d 1258), which
specifically discounts the argument that skill=creativity.

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Re: [Wikimedia-l] Copyright on Xrays

Max Harmony
In reply to this post by Anthony-73
2012/8/20 Anthony <[hidden email]>:
> Under US law (I know very little about the law of other countries):
>
> Unless the patient somehow contributed creatively to the image (broke
> his bones in a certain creative pattern), it's certainly not the HMO
> or patient.  If the X-ray tech is an employee, then it's certainly not
> the X-ray tech.
But the copyright of a work for hire goes to the employer. The X-ray
tech would get the copyright, but they're employed by the hospital.
The hospital, in turn, is employed by the patient. As such, I would
think the patient does own the copyright. Is a similar logic not
applied to, say, wedding photos, in which an photographer is employed
by a company which is in turn employed by the couple?

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Re: [Wikimedia-l] Copyright on Xrays

Tomasz Ganicz
2012/8/20 Max Harmony <[hidden email]>:

> 2012/8/20 Anthony <[hidden email]>:
>> Under US law (I know very little about the law of other countries):
>>
>> Unless the patient somehow contributed creatively to the image (broke
>> his bones in a certain creative pattern), it's certainly not the HMO
>> or patient.  If the X-ray tech is an employee, then it's certainly not
>> the X-ray tech.
> But the copyright of a work for hire goes to the employer. The X-ray
> tech would get the copyright, but they're employed by the hospital.
> The hospital, in turn, is employed by the patient. As such, I would
> think the patient does own the copyright. Is a similar logic not
> applied to, say, wedding photos, in which an photographer is employed
> by a company which is in turn employed by the couple?
>

No. Patient is a customer of the hospital, not the employer of the
hospital :-) We are talking about legal issue, so we should stick to
legal definitions of words (not the moral ones).

In case of weeding photos all depends on what is written in the
agreement between a couple and the photographer/agency. The agreement
might and might not contain the clause of copyright transfer. If it
does not - from legal POV pictures can be used only for personal needs
- even publishing them on facebook is questionable in that case..

--
Tomek "Polimerek" Ganicz
http://pl.wikimedia.org/wiki/User:Polimerek
http://www.ganicz.pl/poli/
http://www.cbmm.lodz.pl/work.php?id=29&title=tomasz-ganicz

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
In reply to this post by Max Harmony
On Mon, Aug 20, 2012 at 8:20 AM, Max Harmony <[hidden email]> wrote:

> 2012/8/20 Anthony <[hidden email]>:
>> Under US law (I know very little about the law of other countries):
>>
>> Unless the patient somehow contributed creatively to the image (broke
>> his bones in a certain creative pattern), it's certainly not the HMO
>> or patient.  If the X-ray tech is an employee, then it's certainly not
>> the X-ray tech.
> But the copyright of a work for hire goes to the employer. The X-ray
> tech would get the copyright, but they're employed by the hospital.
> The hospital, in turn, is employed by the patient. As such, I would
> think the patient does own the copyright.

If the X-ray tech is an employee (and the work is created within the
scope of his employment, which I am assuming), then, under US law, the
tech never "gets the copyright".  The employer is the author.  The
tech is completely out of the loop.

As for the hospital being "employed by the patient", not in the sense
of work for hire law.

For the patient to get the copyright, they would need to enter into a
work for hire agreement, the details of which are long and which you
can easily find online.

> Is a similar logic not
> applied to, say, wedding photos, in which an photographer is employed
> by a company which is in turn employed by the couple?

Wedding photos are more complicated.  I could see an argument, under
some factual circumstances, that the couple  (and/or the decorator,
etc) might own copyright as a joint author.  Or they may have employed
the photographer directly.  Or they may have commissioned the work
under a work for hire agreement.  Or they might have purchased the
copyright in a copyright transfer.  Or they might just not own the
copyright in the work at all.

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Re: [Wikimedia-l] Copyright on Xrays

Dan Rosenthal
As I'm running out the door, two things to point out factually:

1) people who work in U.S. hospitals are very often independent
contractors, especially physicians.
2) much medical diagnostic imaging is done on an outpatient basis at an
independent imager. Even if the imager has copyright, there's no way to
know whether there is a standing assignment agreement or not.

Additionally to confuse things, HIPAA mandates access to (but not
necessarily copyright in, though I haven't really looked at it) medical
records, as well as disclosure and protection requirements.

Dan Rosenthal


On Mon, Aug 20, 2012 at 3:33 PM, Anthony <[hidden email]> wrote:

> On Mon, Aug 20, 2012 at 8:20 AM, Max Harmony <[hidden email]>
> wrote:
> > 2012/8/20 Anthony <[hidden email]>:
> >> Under US law (I know very little about the law of other countries):
> >>
> >> Unless the patient somehow contributed creatively to the image (broke
> >> his bones in a certain creative pattern), it's certainly not the HMO
> >> or patient.  If the X-ray tech is an employee, then it's certainly not
> >> the X-ray tech.
> > But the copyright of a work for hire goes to the employer. The X-ray
> > tech would get the copyright, but they're employed by the hospital.
> > The hospital, in turn, is employed by the patient. As such, I would
> > think the patient does own the copyright.
>
> If the X-ray tech is an employee (and the work is created within the
> scope of his employment, which I am assuming), then, under US law, the
> tech never "gets the copyright".  The employer is the author.  The
> tech is completely out of the loop.
>
> As for the hospital being "employed by the patient", not in the sense
> of work for hire law.
>
> For the patient to get the copyright, they would need to enter into a
> work for hire agreement, the details of which are long and which you
> can easily find online.
>
> > Is a similar logic not
> > applied to, say, wedding photos, in which an photographer is employed
> > by a company which is in turn employed by the couple?
>
> Wedding photos are more complicated.  I could see an argument, under
> some factual circumstances, that the couple  (and/or the decorator,
> etc) might own copyright as a joint author.  Or they may have employed
> the photographer directly.  Or they may have commissioned the work
> under a work for hire agreement.  Or they might have purchased the
> copyright in a copyright transfer.  Or they might just not own the
> copyright in the work at all.
>
> _______________________________________________
> Wikimedia-l mailing list
> [hidden email]
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/wikimedia-l
>
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Re: [Wikimedia-l] Copyright on Xrays

Cynthia Ashley-Nelson
In the US, the Health Insurance Portability and Accountability Act of 1996
(HIPAA) governs release of medical information, which includes any medium,
including spoken, written, or electronically stored. This includes videos,
photographs, and x-rays. The only person legally entitled to release this
information is the patient or individual holding medical power of attorney.
You can find more information here: http://www.hhs.gov/ocr/privacy/


On Mon, Aug 20, 2012 at 5:38 AM, Dan Rosenthal <[hidden email]> wrote:

> As I'm running out the door, two things to point out factually:
>
> 1) people who work in U.S. hospitals are very often independent
> contractors, especially physicians.
> 2) much medical diagnostic imaging is done on an outpatient basis at an
> independent imager. Even if the imager has copyright, there's no way to
> know whether there is a standing assignment agreement or not.
>
> Additionally to confuse things, HIPAA mandates access to (but not
> necessarily copyright in, though I haven't really looked at it) medical
> records, as well as disclosure and protection requirements.
>
> Dan Rosenthal
>
>
> On Mon, Aug 20, 2012 at 3:33 PM, Anthony <[hidden email]> wrote:
>
> > On Mon, Aug 20, 2012 at 8:20 AM, Max Harmony <[hidden email]>
> > wrote:
> > > 2012/8/20 Anthony <[hidden email]>:
> > >> Under US law (I know very little about the law of other countries):
> > >>
> > >> Unless the patient somehow contributed creatively to the image (broke
> > >> his bones in a certain creative pattern), it's certainly not the HMO
> > >> or patient.  If the X-ray tech is an employee, then it's certainly not
> > >> the X-ray tech.
> > > But the copyright of a work for hire goes to the employer. The X-ray
> > > tech would get the copyright, but they're employed by the hospital.
> > > The hospital, in turn, is employed by the patient. As such, I would
> > > think the patient does own the copyright.
> >
> > If the X-ray tech is an employee (and the work is created within the
> > scope of his employment, which I am assuming), then, under US law, the
> > tech never "gets the copyright".  The employer is the author.  The
> > tech is completely out of the loop.
> >
> > As for the hospital being "employed by the patient", not in the sense
> > of work for hire law.
> >
> > For the patient to get the copyright, they would need to enter into a
> > work for hire agreement, the details of which are long and which you
> > can easily find online.
> >
> > > Is a similar logic not
> > > applied to, say, wedding photos, in which an photographer is employed
> > > by a company which is in turn employed by the couple?
> >
> > Wedding photos are more complicated.  I could see an argument, under
> > some factual circumstances, that the couple  (and/or the decorator,
> > etc) might own copyright as a joint author.  Or they may have employed
> > the photographer directly.  Or they may have commissioned the work
> > under a work for hire agreement.  Or they might have purchased the
> > copyright in a copyright transfer.  Or they might just not own the
> > copyright in the work at all.
> >
> > _______________________________________________
> > Wikimedia-l mailing list
> > [hidden email]
> > Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/wikimedia-l
> >
> _______________________________________________
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>



--

Best regards,

Cindy Ashley-Nelson
"Yes. *Her again.*"
http://en.wikipedia.org/wiki/User:Cindamuse
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Re: [Wikimedia-l] Copyright on Xrays

Nathan Awrich
On Mon, Aug 20, 2012 at 1:27 PM, Cynthia Ashley-Nelson
<[hidden email]>wrote:

> In the US, the Health Insurance Portability and Accountability Act of 1996
> (HIPAA) governs release of medical information, which includes any medium,
> including spoken, written, or electronically stored. This includes videos,
> photographs, and x-rays. The only person legally entitled to release this
> information is the patient or individual holding medical power of attorney.
> You can find more information here: http://www.hhs.gov/ocr/privacy/
>

In the interests of clarity, the above applies only to information which is
individually identifying. If it has been de-identified, which is presumably
not that difficult for x-ray images, then distribution is permitted for
other purposes without the patients' authorization.

~Nathan
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Re: [Wikimedia-l] Copyright on Xrays

Thomas Dalton
In reply to this post by Cynthia Ashley-Nelson
On 20 August 2012 18:27, Cynthia Ashley-Nelson <[hidden email]> wrote:
> In the US, the Health Insurance Portability and Accountability Act of 1996
> (HIPAA) governs release of medical information, which includes any medium,
> including spoken, written, or electronically stored. This includes videos,
> photographs, and x-rays. The only person legally entitled to release this
> information is the patient or individual holding medical power of attorney.
> You can find more information here: http://www.hhs.gov/ocr/privacy/

Privacy law is generally separate from copyright law.

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Re: [Wikimedia-l] Copyright on Xrays

geni
In reply to this post by David Gerard-2
On 20 August 2012 12:52, David Gerard <[hidden email]> wrote:

> On 20 August 2012 12:50, Anthony <[hidden email]> wrote:
>> On Mon, Aug 20, 2012 at 7:47 AM, David Gerard <[hidden email]> wrote:
>
>>> I'm sure that collectively we can bloviate with the best of 'em on the
>>> topic - but do we have any case law whatsoever anywhere on the topic
>>> that might give real-world pointers?
>
>> It's a question of fact, not a question of law.
>
>
> Then any real-world examples of the question arising.
>


I doubt it. Most X-rays aren't worth enough to be worth suing over and
the handful that are mostly derive for the scientific community who
tend not to sue people over the issue of copyright.

--
geni

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Re: [Wikimedia-l] Copyright on Xrays

Sage Ross
On Mon, Aug 20, 2012 at 3:17 PM, geni <[hidden email]> wrote:

> On 20 August 2012 12:52, David Gerard <[hidden email]> wrote:
>> On 20 August 2012 12:50, Anthony <[hidden email]> wrote:
>>> On Mon, Aug 20, 2012 at 7:47 AM, David Gerard <[hidden email]> wrote:
>>
>>>> I'm sure that collectively we can bloviate with the best of 'em on the
>>>> topic - but do we have any case law whatsoever anywhere on the topic
>>>> that might give real-world pointers?
>>
>>> It's a question of fact, not a question of law.
>>
>>
>> Then any real-world examples of the question arising.
>>
>
>
> I doubt it. Most X-rays aren't worth enough to be worth suing over and
> the handful that are mostly derive for the scientific community who
> tend not to sue people over the issue of copyright.
>

From what I've seen, copyright doesn't even enter into the
institutional perspective here. The framework is all about controlling
the flow of patient information.

My partner (a doctor doing residency at the main hospital system in
Pittsburgh) would have to go through the Institutional Review Board
system to publish medical images, even ones nominally free of
identifying information. She'd be able to have them published for
certain purposes (case studies and other things that are about medical
practice, but are not research per se) without patient permission. For
research and other purposes, she would need permission of the patients
even for nominally non-identifying medical info. But there aren't any
additional hurdles regarding assignment of copyright to the
publishers.

On the other hand, medical technicians and doctors who create
ultrasound images for pregnant women distribute them to the women (and
even intentionally frame some as "portraits", with at least a little
bit of creativity involved) to do with as they please.

I'd say, whatever the copyright status, she'd risk her job by
distributing something like X-rays without going through the IRB
system. And if she got IRB permission, asserting PD status or copyleft
status or whatever wouldn't likely be a problem.

-Sage

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