[Wikimedia-l] Copyright on Xrays

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
On Wed, Aug 22, 2012 at 2:37 PM, geni <[hidden email]> wrote:
> 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.

The reason is that they are protected by patent.  See
http://en.wikipedia.org/wiki/Idea%E2%80%93expression_divide

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
In reply to this post by Thomas Dalton
On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton <[hidden email]> wrote:
> http://commons.wikimedia.org/wiki/File:Upperarm.jpg
>
> That photo, according to the licenses on that page, has copyright. Do
> you disagree?

It possibly has a very thin copyright.  And even that very thin
copyright would be unlikely to hold up under a fair use analysis.

It's hard to say for sure though, without knowing the details of how
the image was made.

If you're particularly paranoid about copyright, it would be best to
ask the putative author for permission.

> 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?

I doubt it would be essentially the same.  It would probably be tighter.

Also, there would not be any lighting considerations that aren't taken
care of by the machine.

I'm not sure if there are F-stops and apertures and stuff to worry about.

I'm really not sure what there is which would hold up to an analysis
under the merger doctrine.

On the other hand, I'm not willing to say that it definitely
*wouldn't* be able to attract copyright.  If you're particularly
paranoid about copyright, it would be best to ask the putative author
for permission.

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
In reply to this post by Thomas Dalton
On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton <[hidden email]> wrote:
> http://commons.wikimedia.org/wiki/File:Upperarm.jpg

http://commons.wikimedia.org/wiki/File:Arm.agr.jpg would probably be a
better example.

There's a good chance that wouldn't be considered copyrightable under US law.

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Re: [Wikimedia-l] Copyright on Xrays

Todd Allen
On Wed, Aug 22, 2012 at 1:54 PM, Anthony <[hidden email]> wrote:
> On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton <[hidden email]> wrote:
>> http://commons.wikimedia.org/wiki/File:Upperarm.jpg
>
> http://commons.wikimedia.org/wiki/File:Arm.agr.jpg would probably be a
> better example.
>
> There's a good chance that wouldn't be considered copyrightable under US law.


Even if it is, I think an X-ray would be quite different. In taking a
photo of a subject's arm, the photographer must consider lighting,
angle to which the arm is turned, the proper camera settings, how to
find the exact arm that suits the purposes of the intended photo, etc.
I think there would be just enough creativity in that arm shot, but
it'd be close.

An X-ray, on the other hand, is made by a technician according to
documented procedures. The arm is turned to the proper angle to see
what the doctor wants to see, not to an angle that's aesthetically or
artistically pleasing. The image is taken according to standard and
inflexible procedures. The technician is not exercising a bit of
creativity in taking the image. In fact, the tech would likely get in
trouble if (s)he DID decide to "get creative" with it.

I wouldn't see how medical X-rays would be any more "creative" or
copyrightable than blood test results.

--
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

Thomas Dalton
In reply to this post by Anthony-73
On 22 August 2012 20:50, Anthony <[hidden email]> wrote:
> It possibly has a very thin copyright.

Copyright doesn't have thickness. Either it is copyrightable or it isn't.

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
In reply to this post by Todd Allen
On Wed, Aug 22, 2012 at 4:15 PM, Todd Allen <[hidden email]> wrote:

> On Wed, Aug 22, 2012 at 1:54 PM, Anthony <[hidden email]> wrote:
>> On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton <[hidden email]> wrote:
>>> http://commons.wikimedia.org/wiki/File:Upperarm.jpg
>>
>> http://commons.wikimedia.org/wiki/File:Arm.agr.jpg would probably be a
>> better example.
>>
>> There's a good chance that wouldn't be considered copyrightable under US law.
>
> Even if it is, I think an X-ray would be quite different. In taking a
> photo of a subject's arm, the photographer must consider lighting,
> angle to which the arm is turned, the proper camera settings, how to
> find the exact arm that suits the purposes of the intended photo, etc.

Heh, I'd argue that the photo in question shows that the photographer
obviously does *not* have to make these considerations.  Looks like a
random arm in a random position against a plain white wall (hardly
creative), with auto everything.

> I think there would be just enough creativity in that arm shot, but
> it'd be close.

Yeah, I agree it'd be close.  I think it'd come down to the testimony
of the photographer.  If he claimed "oh, I chose a hairy arm because
X, and I opened my thumb because Y", maybe I'd buy it.  So if you're
feeling particularly copyright-paranoid, it's best to get explicit
permission.

> An X-ray, on the other hand, is made by a technician according to
> documented procedures. The arm is turned to the proper angle to see
> what the doctor wants to see, not to an angle that's aesthetically or
> artistically pleasing.

I could be wrong, but I'm not sure there's a requirement for aesthetic
or artistic purpose.  Non-fiction, software, legal contracts, etc.,
all have been held to be copyrightable.

> The image is taken according to standard and inflexible procedures.
> The technician is not exercising a bit of
> creativity in taking the image. In fact, the tech would likely get in
> trouble if (s)he DID decide to "get creative" with it.

That, on the other hand, is a very important point.

On the other other hand, it's not true of all X-ray images.  It's
certainly possible, for instance, to create an X-ray image with the
explicit purpose of putting it in an encyclopedia, or a journal, or
even a book of artwork.

Where it gets into grey area would be if the person created the X-ray
image knowing that it would be used in a book, but that it would also
be used for diagnostic purposes.

Either way, it's a question of fact what instructions were given to
the X-ray tech, as well as whether or not the tech followed them.

On Wed, Aug 22, 2012 at 5:25 PM, Thomas Dalton <[hidden email]> wrote:
> On 22 August 2012 20:50, Anthony <[hidden email]> wrote:
>> It possibly has a very thin copyright.
>
> Copyright doesn't have thickness. Either it is copyrightable or it isn't.

Incorrect.  In some works, some aspects are copyrighted, and some
aspects are not.

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
On Wed, Aug 22, 2012 at 5:41 PM, Anthony <[hidden email]> wrote:
> On Wed, Aug 22, 2012 at 5:25 PM, Thomas Dalton <[hidden email]> wrote:
>> On 22 August 2012 20:50, Anthony <[hidden email]> wrote:
>>> It possibly has a very thin copyright.
>>
>> Copyright doesn't have thickness. Either it is copyrightable or it isn't.
>
> Incorrect.  In some works, some aspects are copyrighted, and some
> aspects are not.

As for the term "thin" as it refers to copyright, see the seminal case
of Feist.  "This inevitably means that the copyright in a factual
compilation is thin."

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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 9:22 AM, Anthony <[hidden email]> wrote:

> 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.),  

I believe artistic/non-artistic is accurate for images. Technically it is artistic, literary, dramatic, or musical works. The rules can change a bit as you change mediums, so when we are talking about an image I am talking about copyright wrt to images.
 

>
>> 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.

I actually expanded on this at the end of my last email. If that doesn't clarify, ask again and explain what gzip is.
>
>> 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?
>
Copyright, internationally, is bilateral agreements. If it is not protected in the US, it cannot demand bilateral protection elsewhere.  It would be based on the jurisdiction of creation.  Publication has had nothing to do with the creation of copyright since the 1970's as far as I am aware.  Before 1976, in the US, place of publication was significant for determining copyright protection because of the notice requirement. Now copyright is automatic at fixation.

Birgitte SB
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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 4:41 PM, Anthony <[hidden email]> wrote:

> On Wed, Aug 22, 2012 at 4:15 PM, Todd Allen <[hidden email]> wrote:
>> On Wed, Aug 22, 2012 at 1:54 PM, Anthony <[hidden email]> wrote:
>>> On Wed, Aug 22, 2012 at 2:47 PM, Thomas Dalton <[hidden email]> wrote:
>>>> http://commons.wikimedia.org/wiki/File:Upperarm.jpg
>>>
>>> http://commons.wikimedia.org/wiki/File:Arm.agr.jpg would probably be a
>>> better example.
>>>
>>> There's a good chance that wouldn't be considered copyrightable under US law.
>>
>> Even if it is, I think an X-ray would be quite different. In taking a
>> photo of a subject's arm, the photographer must consider lighting,
>> angle to which the arm is turned, the proper camera settings, how to
>> find the exact arm that suits the purposes of the intended photo, etc.
>
> Heh, I'd argue that the photo in question shows that the photographer
> obviously does *not* have to make these considerations.  Looks like a
> random arm in a random position against a plain white wall (hardly
> creative), with auto everything.
>
>> I think there would be just enough creativity in that arm shot, but
>> it'd be close.
>
> Yeah, I agree it'd be close.  I think it'd come down to the testimony
> of the photographer.  If he claimed "oh, I chose a hairy arm because
> X, and I opened my thumb because Y", maybe I'd buy it.  So if you're
> feeling particularly copyright-paranoid, it's best to get explicit
> permission.
>
>> An X-ray, on the other hand, is made by a technician according to
>> documented procedures. The arm is turned to the proper angle to see
>> what the doctor wants to see, not to an angle that's aesthetically or
>> artistically pleasing.
>
> I could be wrong, but I'm not sure there's a requirement for aesthetic
> or artistic purpose.  Non-fiction, software, legal contracts, etc.,
> all have been held to be copyrightable.

I think you are overestimating the very minimal amount of creativity that is required to here. The aesthetic choice between noting a pause as a period vs. a dash vs. a semi-colon has been upheld as copyrightable. There is aesthetics within non-fiction and legal documents, whether or not they are primary consideration.

>
>> The image is taken according to standard and inflexible procedures.
>> The technician is not exercising a bit of
>> creativity in taking the image. In fact, the tech would likely get in
>> trouble if (s)he DID decide to "get creative" with it.
>
> That, on the other hand, is a very important point.
>
> On the other other hand, it's not true of all X-ray images.  It's
> certainly possible, for instance, to create an X-ray image with the
> explicit purpose of putting it in an encyclopedia, or a journal, or
> even a book of artwork.
>
> Where it gets into grey area would be if the person created the X-ray
> image knowing that it would be used in a book, but that it would also
> be used for diagnostic purposes.
>
> Either way, it's a question of fact what instructions were given to
> the X-ray tech, as well as whether or not the tech followed them.
>

I disagree here, the intention of the creator has no more to do with copyright than effort expended. It all hangs on whether the work as executed contains some newly created creative expression of the information. Whether it resulted from purposeful or subconscious choices do not matter.

> On Wed, Aug 22, 2012 at 5:25 PM, Thomas Dalton <[hidden email]> wrote:
>> On 22 August 2012 20:50, Anthony <[hidden email]> wrote:
>>> It possibly has a very thin copyright.
>>
>> Copyright doesn't have thickness. Either it is copyrightable or it isn't.
>
> Incorrect.  In some works, some aspects are copyrighted, and some
> aspects are not.
>
+1

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

Anthony-73
In reply to this post by Birgitte_sb
On Thu, Aug 23, 2012 at 8:20 AM,  <[hidden email]> wrote:
> I believe artistic/non-artistic is accurate for images. Technically it is artistic, literary, dramatic,
> or musical works.

Well, I think that's an abuse of the term "artistic".  The job of a
photojournalist, for instance, is to capture what is true, not what is
aesthetically pleasing.

I understand that it's an abuse of the term "artistic" which is, to
some extent codified into law.  But I still don't think it's the right
term.

>> 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.
>
> I actually expanded on this at the end of my last email. If that doesn't clarify, ask again and
> explain what gzip is.

gzip is command line compression software.  As you've limited your
comment to images, it doesn't apply.

>>> 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?
>>
> Copyright, internationally, is bilateral agreements. If it is not protected in the US, it cannot
> demand bilateral protection elsewhere.  It would be based on the jurisdiction of creation.
> Publication has had nothing to do with the creation of copyright since the 1970's as far as I
> am aware.  Before 1976, in the US, place of publication was significant for determining
> copyright protection because of the notice requirement. Now copyright is automatic at fixation.

Are you sure, or are you guessing?

What about all that "country of origin" stuff in the Berne Convention?
 That certainly suggests to me that the location of first publication
matters.

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
In reply to this post by Birgitte_sb
On Thu, Aug 23, 2012 at 8:34 AM,  <[hidden email]> wrote:
> On Aug 22, 2012, at 4:41 PM, Anthony <[hidden email]> wrote:
>> I could be wrong, but I'm not sure there's a requirement for aesthetic
>> or artistic purpose.  Non-fiction, software, legal contracts, etc.,
>> all have been held to be copyrightable.
>
> I think you are overestimating the very minimal amount of creativity that is required to here.

Not at all.  I'm just saying that creativity isn't necessarily art.  A
legal contract may be quite creative.  But it isn't art.

>> Either way, it's a question of fact what instructions were given to
>> the X-ray tech, as well as whether or not the tech followed them.
>>
>
> I disagree here, the intention of the creator has no more to do with copyright than effort
> expended.

Hmm...you may be right on that.  If I accidentally spill some paint on
a canvas and it creates an image that looks like the Virgin Mary, do I
have a copyright on the image?

I'm not sure what the case law is on that one.

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
In reply to this post by Birgitte_sb
On Wed, Aug 22, 2012 at 2:49 PM,  <[hidden email]> wrote:
> 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.

One problem with that is that the X-ray images that you are most
likely to find are the most likely to have been created with the
intention of being distributed.

On the other hand, if "probably no one will sue" is good enough for
you, then you really don't need to ask the legal question in the first
place.

> Another rule of thumb: Most images, whatever they depict, are also *designed* to be pleasing
> to human aesthetics.

I don't understand that.  What are you using the term "human
aesthetics" to mean?

And even if you're true about most, that still leaves a great number
which were not.  Many images were in fact designed to be aesthetically
displeasing.

And many others were designed, like the X-ray image, to objectively
depict reality.

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
On Thu, Aug 23, 2012 at 9:05 AM, Anthony <[hidden email]> wrote:
> And many others were designed, like the X-ray image, to objectively
> depict reality.

In fact, in theory, almost all the images in an encyclopedia should be
of this type (I say "almost" because there will also be images which
are there for the purposes of talking about the image itself).

Unfortunately this is only the theory, and not the practice, and we
get pictures winning picture of the year which are altered from
reality in order to be more aesthetically pleasing.

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[Wikimedia-l] Uncopyrightable works and cross-jurisdictional protections was Re: Copyright on Xrays

Birgitte_sb
In reply to this post by Anthony-73




On Aug 23, 2012, at 7:35 AM, Anthony <[hidden email]> wrote:

> On Thu, Aug 23, 2012 at 8:20 AM,  <[hidden email]> wrote:
>> Snip
>
>>>> 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?
>>>
>> Copyright, internationally, is bilateral agreements. If it is not protected in the US, it cannot
>> demand bilateral protection elsewhere.  It would be based on the jurisdiction of creation.
>> Publication has had nothing to do with the creation of copyright since the 1970's as far as I
>> am aware.  Before 1976, in the US, place of publication was significant for determining
>> copyright protection because of the notice requirement. Now copyright is automatic at fixation.
>
> Are you sure, or are you guessing?
>
> What about all that "country of origin" stuff in the Berne Convention?
> That certainly suggests to me that the location of first publication
> matters.
>

Publication shortens the copyright term that was enjoyed by the unpublished work. That is the only significance I am aware that the first publication has since the 1970's.

However, the Berne Convention is insane.  It is not set up as a bilateral treaty like I had thought. (Some of the other relevant agreement are.) It reads:

> [the enjoyment and exercise of copyright] ... shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed. — Berne Convention, article 5(2).


Here is an example of how insane that is.  In the US edicts of government are uncopyrightable. A few years ago Oregon "forgot" about this; they notices on their website and actually attempted to enforce copyright on the statues of Oregon. I am not sure how far this went in litigation before they were educated about copyright law. Now in the UK, edicts of government are copyrightable. The UK recently switched its license on the local statute from Crown Copyright to some new "Free Government" license. One way that Berne can be read is that if you had printed a copy of the Statues of Oregon from their website in Oregon; you were not infringing on copyright.  However if you had printed a copy of the Statues of Oregon from their website *in the UK*; you were infringing on the copyrights owned by the State of Oregon.  And if Oregon had sought to enforce these rights in the UK, they would have been able to.  

Now this is the really insane part. The US policy relies on common law, so there isn't a quotable  statue.  The summary is "such material as laws and governmental rules and decisions must be freely available to the public and made known as widely as possible; hence there must be no restriction on reproduction and dissemination of such documents." Now imagine the US federal government passed a law stating that "in order allow for the widest distribution possible, all edicts of government are to be protected by copyright for a term of 1 minute." If that were to happen then Oregon would no longer be able to enforce copyright on the Statutes of Oregon in the UK or any other Berne signatory that does not explicitly revoke the rule of the shorter term (one the "provisions of the Convention" that can invalidate the the quoted idea above).

Obviously, I just pulled all this together. And I am "just guessing", as you might say, about how it would actually play out. And while it is a crazy corner of international copyright, it is not an issue I am concerned with about the diagnostic images. I do not believe such images are copyrighted anywhere. Until someone cites some copyright law that is profoundly differently from generic US basis for what copyright is about, I am will remain confident that mere diagnostic images are universally without copyright protection.

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

Birgitte_sb
In reply to this post by Anthony-73




On Aug 23, 2012, at 8:05 AM, Anthony <[hidden email]> wrote:

> On Wed, Aug 22, 2012 at 2:49 PM,  <[hidden email]> wrote:
>> 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.
>
> One problem with that is that the X-ray images that you are most
> likely to find are the most likely to have been created with the
> intention of being distributed.
>

I don't understand why "intention to distribute" would be relevant.


> On the other hand, if "probably no one will sue" is good enough for
> you, then you really don't need to ask the legal question in the first
> place.

That is not at all what I said, but you are quite good at striking down an argument which I did not make and do not support!

Since there is so little left of what I said, I will rephrase: Diagnostic images are not copyrighted and there are lots of interchangeable images that are equally not copyrighted. If one of these interchangeable images credits someone as a creator, and you are worried they "probably will sue", then use another interchangeable image. Unless, of course, one purposefully wishes to be a jerk about their understanding of copyright.  And while I am sure someone will, I wound prefer not to put any more effort in considering the situation. (So please don't misquote me on this issue!)

>
>> Another rule of thumb: Most images, whatever they depict, are also *designed* to be pleasing
>> to human aesthetics.
>
> I don't understand that.  What are you using the term "human
> aesthetics" to mean?

I meant when creating a common photo no consideration is given to composition of the infrared wavelengths. However, whether the photographer is very aware of it or not, aesthetic choices are being made as the overall composition is selected. It is really outside this topic, but I think the aesthetics which happen please/disturb us are often evolutionary. I tend to always be connecting things in my thinking, I didn't mean to have it spill over and muddy things here.  Don't read too much into and pretend I just wrote aesthetics.  I doubt any one but me would be reading that sentence and wondering whether non-humans would find most pictures to be pleasing. Sorry for confusing the issue.

> And even if you're truer about most, that still leaves a great number
> which were not.  Many images were in fact designed to be aesthetically
> displeasing.

I also wrote a sentence about copyrightable images being designed for "aesthetic effect". While I think the statement you quoted works as *a rule of thumb*, I purposefully did not limit the statement that followed to only *pleasing* aesthetic effects.


>
> And many others were designed, like the X-ray image, to objectively
> depict reality.
>
> _____________________

Yes there are many such images.

These types of images are called utilitarian images.

Which is what prompted me to write about how copyright hangs upon aesthetic choices. In hopes that it would help people understand why images lacking aesthetic choices also lack copyright. I was very aware there are many such images. I labeled my statement a rule of thumb not a universal rule.

I know this all sounds like I am very annoyed.  I am really just slightly annoyed ;)

Look copyright is really tough. Really.  And most people, probably everyone to some degree, misunderstands copyright. I honestly am happy to see you smack down some of my statements, like you did about all the international agreements working as bi-lateral treaties. I learned that Berne is different today, and frankly I think that is awesome. I ran out of low hanging fruit wrt to copyright a long time ago. I really appreciate the opportunity this thread has offered me to gain a nuance to my understanding.  Seriously.  

But I don't appreciate the rhetorical twists that, instead of clarifying the discussion, muddy things by making our that a sentence or two that wrote support a position that I never took. Not that it bothers me personally. But it confuses the discussion immensely for people who may have been struggling to follow it in the beginning. A long time ago, when I knew *nothing* of copyright, this list is where I managed to gather most of the low hanging fruit. Eventually I had to search for understanding elsewhere, but I know people making copyright decisions in the wikis may be using this list as a tool for making those decisions. At one time, I was such a person.

So anyways . . . I know it's the internet and all . . . where men are compelled to put on displays of rhetorical prowess as though they were peacocks . . . but please  . . . for the children and all that . . . Can we try to avoid picking out the weakest snippets of writing for rhetorical displays and instead focus on the heart of the positions to explore the issue in way that allows us to both improve our understandings?

At least about copyright?
 
Birgitte SB



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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
On Thu, Aug 23, 2012 at 8:44 PM,  <[hidden email]> wrote:
> On Aug 23, 2012, at 8:05 AM, Anthony <[hidden email]> wrote:
>> On the other hand, if "probably no one will sue" is good enough for
>> you, then you really don't need to ask the legal question in the first
>> place.
>
> That is not at all what I said, but you are quite good at striking down an argument which I did not make
> and do not support!

It was an argument that I made and which I do support.  I'm not going
to make a detailed legal analysis every time I copy or distribute
something.  If it isn't obviously infringing, and if "probably no one
will sue", sometimes that's good enough.  Other times it isn't.  For
example, I've never done a detailed legal analysis of what the limits
are (if any) to quoting people in an email sent to a mailing list.  It
isn't obviously infringing, and probably no one will sue, so that's
good enough.  On the other hand, if I were going to run a business
redistributing mailing list emails, I'd pay for or do some legal
analysis first.

By "you" I wasn't referring to you in particular, I was referring to
anyone considering the matter.  Sorry if I was confusing by using the
word "you".

> Since there is so little left of what I said, I will rephrase: Diagnostic images are not copyrighted and there
> are lots of interchangeable images that are equally not copyrighted.

Right, you've pretty much already said that.  I have no idea how
you're defining "diagnostic images" such that this is true, though.
And I've pretty much already said that.

>> And many others were designed, like the X-ray image, to objectively
>> depict reality.
>>
>> _____________________
>
> Yes there are many such images.
>
> These types of images are called utilitarian images.
>
> Which is what prompted me to write about how copyright hangs upon aesthetic choices.

So when a photojournalist takes a picture to objectively depict
reality, it's a "utilitarian image"?

> In hopes that it would help people understand why images lacking aesthetic choices also lack copyright.

I don't make aesthetic choices when I write backend server software.
But my software is copyrighted.

Maybe this wasn't the intent of the legislators when they codified US
copyright law.  I'm personally of the opinion that software probably
should have been protected by patents rather than copyright.  But the
de facto state of the law is almost the opposite of this - that
software is copyrighted, and maybe patented.

> So anyways . . . I know it's the internet and all . . . where men are compelled to put on displays of
> rhetorical prowess as though they were peacocks . . . but please  . . . for the children and all that . . . Can
> we try to avoid picking out the weakest snippets of writing for rhetorical displays and instead focus on the
> heart of the positions to explore the issue in way that allows us to both improve our understandings?

I'd appreciate if you wouldn't make such sexist comments, and if you
wouldn't impute on me such motives.

I think you're abusing the terms "art" and "aesthetic".

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
In reply to this post by Birgitte_sb
On Thu, Aug 23, 2012 at 8:44 PM,  <[hidden email]> wrote:
> On Aug 23, 2012, at 8:05 AM, Anthony <[hidden email]> wrote:
>> And many others were designed, like the X-ray image, to objectively
>> depict reality.
>>
>> _____________________
>
> Yes there are many such images.
>
> These types of images are called utilitarian images.

By the way, who calls them this?  I tried to look up the term
"utilitarian image" and couldn't find much of anything.

I've heard of the term "utilitarian object".  But never "utilitarian image".

At this point I'm starting to doubt whether or not Meshwerks even applies.

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Re: [Wikimedia-l] Copyright on Xrays

Anthony-73
On Fri, Aug 24, 2012 at 9:59 AM, Anthony <[hidden email]> 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.

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