[Wikimedia-l] Copyright on Xrays

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Re: [Wikimedia-l] Copyright on Xrays

Nathan Awrich
On Mon, Aug 20, 2012 at 3:37 PM, Sage Ross <[hidden email]>wrote:

> 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
>
>
>
It's relevant for Wikipedia, at least. I don't think the projects take a
view on whether someone is risking their job or following institutional
policies. It's also worth noting that your description is of the process
for publishing medical data (as a general category) at an academic medical
institution, the sort that has an IRB. A large proportion of imaging
nation-wide is done at private, for profit imaging centers. Such centers
may not often engage in research, but that wouldn't prevent them from using
their images in other ways (say, uploading them to Commons or providing
them to medical image repositories).

Nathan
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Re: [Wikimedia-l] Copyright on Xrays

Sage Ross
On Mon, Aug 20, 2012 at 4:04 PM, Nathan <[hidden email]> wrote:

> It's relevant for Wikipedia, at least. I don't think the projects take a
> view on whether someone is risking their job or following institutional
> policies.

Right. But it's worth mentioning... especially if the projects did
take the view that the images were public domain.

> It's also worth noting that your description is of the process
> for publishing medical data (as a general category) at an academic medical
> institution, the sort that has an IRB.

Yep. But it might actually be relatively easy to get good sets of
medical images by working through those kinds of systems, and that
could work regardless of the copyright status of the images.

-Sage

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Re: [Wikimedia-l] Copyright on Xrays

Etienne Beaule-2
My opinion on X-rays.  If done in private property, it is subject to
personality rights, and if in a public area, then it can be copyrighted by
the the person who took the X-ray.  Ebe123


On 2012-08-20 5:17 PM, "Sage Ross" <[hidden email]> wrote:

> On Mon, Aug 20, 2012 at 4:04 PM, Nathan <[hidden email]> wrote:
>
>> It's relevant for Wikipedia, at least. I don't think the projects take a
>> view on whether someone is risking their job or following institutional
>> policies.
>
> Right. But it's worth mentioning... especially if the projects did
> take the view that the images were public domain.
>
>> It's also worth noting that your description is of the process
>> for publishing medical data (as a general category) at an academic medical
>> institution, the sort that has an IRB.
>
> Yep. But it might actually be relatively easy to get good sets of
> medical images by working through those kinds of systems, and that
> could work regardless of the copyright status of the images.
>
> -Sage
>
> _______________________________________________
> 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

Michael Peel-4
In reply to this post by jmh649
OK, so the moderation of this mailing list appears to be broken (surely such emails should at least be held for approval by a moderator?). But please see my previous email (which I sent after hitting the 'reply' button)…

Thanks,
Mike

On 20 Aug 2012, at 21:19, [hidden email] wrote:

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> are now automatically rejected. If you have a valuable contribution to
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> Thank you.
>
>
> From: Michael Peel <[hidden email]>
> Subject: Re: [Wikimedia-l] Copyright on Xrays
> Date: 20 August 2012 21:36:07 BST
> To: Wikimedia Mailing List <[hidden email]>
> Cc: Kat Walsh <[hidden email]>, Jeffery Nichols <[hidden email]>
>
>
> This sounds like a question to ask on Wikimedia Commons, rather than on this mailing list - particularly since the Commons community is the one that needs to monitor and maintain such a legal position! Also asking the question at the talk page of http://meta.wikimedia.org/wiki/Legal_and_Community_Advocacy might be a good idea.
>
> Thanks,
> Mike
>
> On 20 Aug 2012, at 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:
>>
>> 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

jmh649
In reply to this post by jmh649
The WMF legal team has said they would provide an opinion on this
question some time next week. The law is ambiguous and I guess the
real question is how much is the foundation willing to put their neck
out.

--
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

Ray Saintonge
In reply to this post by geni
On 08/20/12 12:17 PM, geni 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.
>
This certainly sums it up. Personality rights are a separate issue, and
in most cases it should be easy to separate them except maybe conjoined
twins and people who have swallowed a charm bracelet with their name
clearly exposed. Breach of contractual rights and employment contracts
are also a separate matter. It's actually easier to deal with these
because something is spelled out. Our concern is more with situations
where nothing is expressed before the problem comes up.

My basic view is that the X-ray is copyrightable with the ownership of
the copyright vesting in the person who invested most of the
originality. If that person is bold enough to be the *first* person to
put that image in fixed form there will be a presumption that he has a
right to do so. Who is going to challenge him? A DMCA takedown order
won't work, because it must reference the work that was infringed as
well as the infringement. To get any more than provable damages the
copyright must also be registered.

It may give comfort to owners to know that copyright in a work is
automatic without registration, but the down side of this is a huge
assortment of material is copyright where the "true" owner has neither
the knowledge or desire for this kind of protection.

Ray

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Re: [Wikimedia-l] Copyright on Xrays

Ray Saintonge
In reply to this post by Michael Peel-4
On 08/20/12 2:01 PM, Michael Peel wrote:
> OK, so the moderation of this mailing list appears to be broken (surely such emails should at least be held for approval by a moderator?). But please see my previous email (which I sent after hitting the 'reply' button)…
>
> Thanks,
> Mike
>
It seems like a perfectly valid topic for this list.

Ray

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Re: [Wikimedia-l] Copyright on Xrays

George William Herbert
In reply to this post by Ray Saintonge
Was this long thread launched by an actual on-wiki (or off-wiki)
Wikipedia or other WMF project issue with medical imaging images?

...

Pardon if it would be obvious should I actually check AN or some such,
but I've been busy all weekend and today.


-george

On Mon, Aug 20, 2012 at 5:39 PM, Ray Saintonge <[hidden email]> wrote:

> On 08/20/12 12:17 PM, geni 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.
>>
> This certainly sums it up. Personality rights are a separate issue, and in
> most cases it should be easy to separate them except maybe conjoined twins
> and people who have swallowed a charm bracelet with their name clearly
> exposed. Breach of contractual rights and employment contracts are also a
> separate matter. It's actually easier to deal with these because something
> is spelled out. Our concern is more with situations where nothing is
> expressed before the problem comes up.
>
> My basic view is that the X-ray is copyrightable with the ownership of the
> copyright vesting in the person who invested most of the originality. If
> that person is bold enough to be the *first* person to put that image in
> fixed form there will be a presumption that he has a right to do so. Who is
> going to challenge him? A DMCA takedown order won't work, because it must
> reference the work that was infringed as well as the infringement. To get
> any more than provable damages the copyright must also be registered.
>
> It may give comfort to owners to know that copyright in a work is automatic
> without registration, but the down side of this is a huge assortment of
> material is copyright where the "true" owner has neither the knowledge or
> desire for this kind of protection.
>
> Ray
>
>
> _______________________________________________
> Wikimedia-l mailing list
> [hidden email]
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/wikimedia-l



--
-george william herbert
[hidden email]

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Re: [Wikimedia-l] Copyright on Xrays

Ray Saintonge
In reply to this post by Cynthia Ashley-Nelson
On 08/20/12 10:27 AM, Cynthia Ashley-Nelson 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/
>
>
> 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
>>
>>
>>
This US law won't apply if the X-rays are taken at a facility outside og
the United States.

Ray

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Re: [Wikimedia-l] Copyright on Xrays

Matthew Bowker
In reply to this post by Ray Saintonge
Hi, all.

I believe Mike was commenting on the fact that his message was bounced back (because of an email funky) and not the topic itself.  In fact, I've been caught by that exact same filter myself.

Sorry if I've read your message wrong.

Matthew Bowker
User:Matthewrbowker

On Aug 20, 2012, at 6:48 PM, Ray Saintonge <[hidden email]> wrote:

> On 08/20/12 2:01 PM, Michael Peel wrote:
>> OK, so the moderation of this mailing list appears to be broken (surely such emails should at least be held for approval by a moderator?). But please see my previous email (which I sent after hitting the 'reply' button)…
>>
>> Thanks,
>> Mike
>>
> It seems like a perfectly valid topic for this list.
>
> Ray
>
> _______________________________________________
> 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

Birgitte_sb
In reply to this post by jmh649




On Aug 20, 2012, at 6:08 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.
> --
>

In most cases ( Covering the significant majority of all x-rays existing, but not ruling out the possibility of rare uses of X-ray photography as an artistic medium) .  . .

7 None of the above

Utilitarian work = uncopyrightable

BirgitteSB
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Re: [Wikimedia-l] Copyright on Xrays

geni
On 21 August 2012 19:44,  <[hidden email]> wrote:

> Utilitarian work = uncopyrightable


Only under a fairly limited number of legal systems.

--
geni

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Re: [Wikimedia-l] Copyright on Xrays

Todd Allen
On Tue, Aug 21, 2012 at 1:19 PM, geni <[hidden email]> wrote:

> On 21 August 2012 19:44,  <[hidden email]> wrote:
>
>> Utilitarian work = uncopyrightable
>
>
> Only under a fairly limited number of legal systems.
>
> --
> geni
>
> _______________________________________________
> Wikimedia-l mailing list
> [hidden email]
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Including the US, where WMF is based.

--
Freedom is the right to say that 2+2=4. From this all else follows.

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
On Tue, Aug 21, 2012 at 4:17 PM, Todd Allen <[hidden email]> wrote:

> On Tue, Aug 21, 2012 at 1:19 PM, geni <[hidden email]> wrote:
>> On 21 August 2012 19:44,  <[hidden email]> wrote:
>>
>>> Utilitarian work = uncopyrightable
>>
>>
>> Only under a fairly limited number of legal systems.
>>
>> --
>> geni
>>
>> _______________________________________________
>> Wikimedia-l mailing list
>> [hidden email]
>> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/wikimedia-l
>
> Including the US, where WMF is based.
>
> --
> Freedom is the right to say that 2+2=4. From this all else follows.
>
> _______________________________________________
> Wikimedia-l mailing list
> [hidden email]
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/wikimedia-l

I think we're looking at this from the perspective of contributors,
not from the perspective of the WMF.  WMF has it's own special legal
protections anyway, like OCILLA.

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Re: [Wikimedia-l] Copyright on Xrays

Birgitte_sb
In reply to this post by Todd Allen




On Aug 21, 2012, at 3:17 PM, Todd Allen <[hidden email]> wrote:

> On Tue, Aug 21, 2012 at 1:19 PM, geni <[hidden email]> wrote:
>> On 21 August 2012 19:44,  <[hidden email]> wrote:
>>
>>> Utilitarian work = uncopyrightable
>>
>>
>> Only under a fairly limited number of legal systems.
>>
>>

[[ciatation needed]]

I really doubt non-artistic works are copyrighted as a general rule anywhere (. . . but I have been wrong before).

Now clearly being able to judge that X is a utilitarian work is the more normal problem with this argument and why it is seldom used. Diagnostic images are one of the few clear-cut situations.

And even if it is only the US, other countries would not recognize copyright on diagnostic images created in the US, which gives us at least the NASA situation.

Birgitte SB
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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
On Wed, Aug 22, 2012 at 9:14 AM,  <[hidden email]> wrote:
> I really doubt non-artistic works are copyrighted as a general rule anywhere

I'm not sure what you mean by "non-artistic", but if you mean "purely
utilitarian", as that term is interpreted by the court, then this is a
good point.

I was going to suggest UK, but a quick search suggests that you
*can't* copyright purely "utilitarian" works in the UK.

(I wouldn't use the term "non-artistic" though.  There are plenty of
works that are copyrighted in the US and all over that I wouldn't
consider "art", and while an argument could be made that such works
shouldn't be copyrightable, court precedent is clearly adverse to that
argument.)

> Now clearly being able to judge that X is a utilitarian work is the more normal problem with
> this argument and why it is seldom used. Diagnostic images are one of the few clear-cut
> situations.

How do you distinguish whether or not it is a "diagnostic image", and
what makes it clear-cut?

Even using the term "utilitarian" rather than "artistic" I can still
come up with a large number of examples of things which seem pretty
"clear-cut" as "utilitarian" to me, but yet which receive copyright
protection.  gzip, for instance.

> And even if it is only the US, other countries would not recognize copyright on diagnostic
> images created in the US, which gives us at least the NASA situation.

Do you have a citation for this?  Also, is it where the image is
created, or where it is first published, or something else?

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
On Wed, Aug 22, 2012 at 10:22 AM, Anthony <[hidden email]> wrote:
> On Wed, Aug 22, 2012 at 9:14 AM,  <[hidden email]> wrote:
>> Now clearly being able to judge that X is a utilitarian work is the more normal problem with
>> this argument and why it is seldom used. Diagnostic images are one of the few clear-cut
>> situations.
>
> How do you distinguish whether or not it is a "diagnostic image", and
> what makes it clear-cut?

If you define "diagnostic image" as "an image created solely for the
purpose of making a diagnosis", then I suppose you've got a clear-cut
utilitarian work.  On the other hand, this wouldn't include an X-ray
which was made by someone who knew the X-ray was going to be used in a
medical book.

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Re: [Wikimedia-l] Copyright on Xrays

geni
In reply to this post by Birgitte_sb
On 22 August 2012 14:14,  <[hidden email]> wrote:

>
>
>
>
> On Aug 21, 2012, at 3:17 PM, Todd Allen <[hidden email]> wrote:
>
>> On Tue, Aug 21, 2012 at 1:19 PM, geni <[hidden email]> wrote:
>>> On 21 August 2012 19:44,  <[hidden email]> wrote:
>>>
>>>> Utilitarian work = uncopyrightable
>>>
>>>
>>> Only under a fairly limited number of legal systems.
>>>
>>>
>
> [[ciatation needed]]

Short answer is that the term "Utilitarian work" doesn't appear in
French, British or US copyright law and no one else had a worthwhile
empire during the relevant time period.


> I really doubt non-artistic works are copyrighted as a general rule anywhere (. . . but I have been wrong before).

Well EU database copyright would be an a counter example but thats
rather an oddball area.

In the case of the US we can consider the constitutional basis of
copyright "To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries." So there is no
reason why a scientific work with no artistic element wouldn't be
protected by copyright.


> Now clearly being able to judge that X is a utilitarian work is the more normal problem with this argument and why it is seldom used.

No the argument isn't use because the term has no meaning. I think
perhaps you are referring to the concept of "useful article" however
I'm not aware of any photograph ever being considered a pure useful
article.

>Diagnostic images are one of the few clear-cut situations.

They aren't per Duchamp and the found art movement.


--
geni

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Re: [Wikimedia-l] Copyright on Xrays

Thomas Dalton
In reply to this post by Birgitte_sb
On 21 August 2012 19:44,  <[hidden email]> wrote:
> In most cases ( Covering the significant majority of all x-rays existing, but not ruling out the possibility of rare uses of X-ray photography as an artistic medium) .  . .
>
> 7 None of the above
>
> Utilitarian work = uncopyrightable

http://commons.wikimedia.org/wiki/File:Upperarm.jpg

That photo, according to the licenses on that page, has copyright. Do
you disagree?

If you agree that that has copyright, why would essentially the same
photo taken using a different frequency of electromagnetic radiation
not have copyright? What is the difference?

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Re: [Wikimedia-l] Copyright on Xrays

Birgitte_sb
In reply to this post by Anthony-73




On Aug 22, 2012, at 9:31 AM, Anthony <[hidden email]> wrote:

> On Wed, Aug 22, 2012 at 10:22 AM, Anthony <[hidden email]> wrote:
>> On Wed, Aug 22, 2012 at 9:14 AM,  <[hidden email]> wrote:
>>> Now clearly being able to judge that X is a utilitarian work is the more normal problem with
>>> this argument and why it is seldom used. Diagnostic images are one of the few clear-cut
>>> situations.
>>
>> How do you distinguish whether or not it is a "diagnostic image", and
>> what makes it clear-cut?
>
> If you define "diagnostic image" as "an image created solely for the
> purpose of making a diagnosis", then I suppose you've got a clear-cut
> utilitarian work.  On the other hand, this wouldn't include an X-ray
> which was made by someone who knew the X-ray was going to be used in a
> medical book.
>
>

If any such images exist where the technician knew to aim for something more than a mere depiction, I would agree that things become more questionable. if the technician is actually credited by the textbook I personally would find a different image to use, because why bother about it? But just the fact that the technician knew something might it be used in a larger work (x-rays don't have preview), wouldn't flip the copyright switch all by itself. Presumably the textbook in question is for instructing someone on how to interpret a diagnostic image. Presumably an actual diagnostic image would be selected for inclusion in such a textbook.  Now if a technician, while working to create diagnostic images, aimed to create an image that might *also* be displayed in an art gallery, then I wouldn't include that image in my general conclusion. But the image has to stand on its own; either was never copyrightable wherever it might be used, or it has always been copyrighted since the moment it was created until the copyright is waived or expires.

To reword what I said before the vast majority of X-ray images in existence are diagnostic images. There is no reason at all to purposefully search out X-rays that might land in some grey area.  If something makes a particular X-ray really stand out from the vast majority, something about that makes an editor want to use *that* one instead picking another from the mountain on diagnostic images. I would suspect that in such a case the uncopyrightable conclusion would be less certain than it is for the vast majority. We are never going to be able to actually determine the copyright on every single image uploaded. Never. Not even with infinite resources. The unknowable category wrt copyright is significant. It is just tiny subset of all works existing, but not so tiny that you will fail to come across it now and again. If an image is borderline and easily substituted; please refrain from wasting the communities' time and energy on it.  Substitute it with an equivalent image with superior provenance.

Rule of thumb (that I haven't thought about very long and may later disagree with): If a specific image truly is uncopyrightable as a utilitarian image, then it should be very easy to replace with another equivalent image. If a specific image doesn't seem to have any *possible* equivalents, it probably isn't a utilitarian image.

Another rule of thumb: Most images, whatever they depict, are also *designed* to be pleasing to human aesthetics. That is usually the part that creates the copyright, the choices that are made to produce a certain aesthetic. When an image is designed without any consideration for aesthetics at all (i.e. an arm is placed on a plane and arranged at a certain angle in order to best diagnose any possible damage to the elbow joint), then it is a very good candidate to be considered a utilitarian image. Consider any stock story with a comic and a tragic version, consider all the reinterpretations that have been done of Shakespeare's plays. The new derivative is copyrighted on the weight of the aesthetic choices. Not idea of boy meets girl. Copyright is about how something is expressed.  The harder it is to express the same information with different aesthetics, whether it is the phone numbers for businesses in a list or the soundness of a joint on an image, the harder it is to attach copyright to any particular expression of this information.

Birgitte SB
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