4 ms·

I see no reason to distinguish the position as between a medical image and any other image. (IANAL etc.) The person who shot it owns the copyright, except, as

by YPPH 4y ago

I see no reason to distinguish the position as between a medical image and any other image. (IANAL etc.) The person who shot it owns the copyright, except, as it was created during employment, copyright is probably owned by the employer. An analogous issue comes up in a more familiar context quite often, being wedding photography. Even if I hire a photographer for my own wedding, the person who takes the photographs owns the copyright. Even though I paid them to take the photos, they own the copyright, unless a release was expressly stated in the contract.

DANK_YACHT 4y ago
Certain images of art have been found not to be copyrightable because the goal of the photographs was to exactly reproduce other pieces of intellectual property. You might be able to make a similar argument for medical images as well.
gpm 4y ago
The only potential wrinkle I see to this is whether or not there's sufficient creative input to create a copyright in the first place. If they're posing you for the picture according to a well defined algorithm, and then pressing a button, it's not clear to me that there is the necessary degree of arbitrariness. Two different technicians would have created the exact same work.
- YPPH 4y ago
  That's an interesting point. I'm not a copyright lawyer, or a radiologist for that matter. Is lining up the X-ray equipment and hitting the go button perhaps sufficient? The radiologist must have some idea about the result they will get from kicking off the process. In relation to the two technicians point, couldn't you say that about any photographic image where the camera is tripod mounted with a static target? Or is it the case that the choice of subject is what matters? Now I'm wondering: If A sets up an X-ray and B comes over and presses the shutter without having even seen what will be photographed, I wonder if that meets the intellectual effort requirement. Perhaps not. Having given it some more thought, a CAT scan could certainly be more legally complicated. This process involves taking many photographs and computing them into a single work using a complex algorithm, with minimal human involvement.
  - killjoywashere 4y ago
    I work in medical imaging and at least in my domain we consider the digital images facsimile copies.
    - jacquesm 4y ago
      They better be. If creative input as a big factor then medical images would be useless! Obviously not all radiologists are created equal and some may be able to work the equipment better than other enabling better diagnosis but the goal is the same for all of them.
  - pbhjpbhj 4y ago
    >This process involves taking many photographs and computing them into a single work using a complex algorithm, with minimal human involvement. // Yes, so it's a technical process and not an artistic creative process. The correct IP law is patent law, copyright is for protection of artistic and creative works not for slavish production of images using technological means. This is my own private opinion and not legal advice.
    - YPPH 4y ago
      What I'm curious about is how you distinguish this from ordinary photography. What sets an X-ray apart? For starters, without knowing, I suspect it is not necessary that you "preview" the result before taking the photograph, given this wasn't viable with early photography. It could be the fact that you can't see the underlying bone structure etc, whereas someone taking an ordinary photograph can look at what they will depict. By this logic, someone who closes their eyes, spins around and photographs something without any idea of what would result may not have used intellectual effort in creating the photograph, since they did not see the subject. On this logic you might also question whether a visually impaired person could ever own copyright in an image. Perhaps it is the predefined nature of what is being depicted. Imagine an autopsy room where the deceased is placed on a trolley and photographs are taken by a mortician from predefined angles. To make it even easier, imagine the cameras are already prepositioned and the mortician simply clicks a button. I wonder if copyright would subsist in the photographs that result from this scenario.
vmception 4y ago
I believe UK law is different and less streamlined than that
killjoywashere 4y ago
So, in the US, it’s the patient’s medical record. The healthcare provider has certain custodial responsibilities, so the patient doesn’t have a ‘right to be forgotten’, but the provider does have to cough up a copy on demand. They are allowed to expect a certain cost, though they don’t all impose a cost to the patient (they’d rather keep charging exorbitant rates to CMS than kick the sleeping dog with $10 out-of-pocket reproduction fees).
jacquesm 4y ago
> I see no reason to distinguish the position as between a medical image and any other image. Fortunately various authorities do see such a distinction, resulting in a lot of countries having very specific laws on how medical data is set apart from say your own personal shot of mount Everest. The mountain does not have an interest in the images made of it but I certainly do have an interest in the images made of me. And depending on how much meta data accompanies those images that interest may go up considerably.
- ISL 4y ago
  The existing rules also convey certain rights to the subject of an image, namely that, subject to various caveats, the image probably can't be used commercially (for the promotion of a product) without a release from the subject. The medical image might be used in an editorial/documentary context without the consent of the subject, but for such an intimate image, the photographer would be wise to ask the subject for consent or ensure sufficient anonymization that the subject simply could not be identified. The rules of medical privacy/records also apply, and may prevent any publication/usage without consent. But, all that said, I suspect that the person who pushed the button on the X-ray machine has initial copyright and that a sufficiently-thoughtful IP agreement for the employee would generally see that copyright transferred to their employer.
  - jacquesm 4y ago
    I've been asked for and have given permission for the use of medical images of a close family member, and the whole process gave me good confidence that some hospitals are really respectful towards their patients in this respect. > But, all that said, I suspect that the person who pushed the button on the X-ray machine has initial copyright They probably do not: https://meta.wikimedia.org/wiki/Wikilegal/Copyright_of_Medical_Imaging https://meta.wikimedia.org/wiki/Wikilegal/Copyright_of_Medic...
    - ISL 4y ago
      Whoa. I sit corrected. "the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author." would appear to come pretty close to excluding school portraits from copyright, too. Interesting that it, per the linked article, hasn't yet been tested in US courts.
jstanley 4y ago
> Even though I paid them to take the photos, they own the copyright, unless a release was expressly stated in the contract. I think it's the other way around. If copyright assignment is not expressly stated in the contract, and you are paying someone to create the work, then it is considered a "work made for hire" and the copyright is assigned to the person who paid.
sixothree 4y ago
Unfortunately there are plenty of laws and regulations that make your assessment just plain incorrect.
- YPPH 4y ago
  Someone here linked a page which said in the US there is no federal case law on whether an X-ray is copyrightable. If that's wrong, what law do you refer to? In some of my other replies you'll see some of my thoughts on how an X-ray may or may not be distinguishable from another ordinary photograph.
  - sixothree 4y ago
    https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf https://www.copyright.gov/comp3/chap300/ch300-copyrightable-... Search for medical imaging. Additionally, clinicians are not allowed to share your data without your permission (barring exceptions such as self harm or unconscious). Your data must not be identifiable to persons other than care team members. And on top of that, you have a right to access that data. https://www.healthit.gov/topic/information-blocking https://www.healthit.gov/topic/information-blocking https://www.healthit.gov/topic/patient-access-health-records/patient-access-health-records https://www.healthit.gov/topic/patient-access-health-records...
    - YPPH 4y ago
      That's the Copyright Office's view. What the law means is decided by the judiciary, not the executive.
Hermel 4y ago
In most countries, medical images are not subject to copyright at all as they lack a creative dimensinon and artistic expression.
DannyBee 4y ago
Correct on the theory but wrong on the answer. There is no distinguishing, but copyright only subsists in creative works, not non-creative works. As a result, in the US, the copyright office won't register copyright in medical images produced through most processes (registration is a pre-requisite to suing) As per Compendium: Chapter 300 by the US Copyright Office, "the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author." including "Medical imaging produced by x-rays, ultrasounds, magnetic resonance imaging, or other diagnostic equipment."
- YPPH 4y ago
  >registration is a pre-requisite to suing If this is so, could you approach the court if you disagree with their interpretation? I'd be surprised if the Copyright Office was the be all and end all of whether copyright subsists in a particular subject-matter.
  - DannyBee 4y ago
    I mean, you could, but this is well settled law at this point. The copyright office updated their guidance after the courts decided this one :)
    - YPPH 4y ago
      What's the case? From what I've read, there is no case law on whether an X-ray meets the creativity requirement.

by YPPH 4y ago

DANK_YACHT 4y ago

Certain images of art have been found not to be copyrightable because the goal of the photographs was to exactly reproduce other pieces of intellectual property. You might be able to make a similar argument for medical images as well.

gpm 4y ago

The only potential wrinkle I see to this is whether or not there's sufficient creative input to create a copyright in the first place. If they're posing you for the picture according to a well defined algorithm, and then pressing a button, it's not clear to me that there is the necessary degree of arbitrariness. Two different technicians would have created the exact same work.

YPPH 4y ago
That's an interesting point. I'm not a copyright lawyer, or a radiologist for that matter. Is lining up the X-ray equipment and hitting the go button perhaps sufficient? The radiologist must have some idea about the result they will get from kicking off the process. In relation to the two technicians point, couldn't you say that about any photographic image where the camera is tripod mounted with a static target? Or is it the case that the choice of subject is what matters? Now I'm wondering: If A sets up an X-ray and B comes over and presses the shutter without having even seen what will be photographed, I wonder if that meets the intellectual effort requirement. Perhaps not. Having given it some more thought, a CAT scan could certainly be more legally complicated. This process involves taking many photographs and computing them into a single work using a complex algorithm, with minimal human involvement.
- killjoywashere 4y ago
  I work in medical imaging and at least in my domain we consider the digital images facsimile copies.
  - jacquesm 4y ago
    They better be. If creative input as a big factor then medical images would be useless! Obviously not all radiologists are created equal and some may be able to work the equipment better than other enabling better diagnosis but the goal is the same for all of them.
- pbhjpbhj 4y ago
  >This process involves taking many photographs and computing them into a single work using a complex algorithm, with minimal human involvement. // Yes, so it's a technical process and not an artistic creative process. The correct IP law is patent law, copyright is for protection of artistic and creative works not for slavish production of images using technological means. This is my own private opinion and not legal advice.
  - YPPH 4y ago
    What I'm curious about is how you distinguish this from ordinary photography. What sets an X-ray apart? For starters, without knowing, I suspect it is not necessary that you "preview" the result before taking the photograph, given this wasn't viable with early photography. It could be the fact that you can't see the underlying bone structure etc, whereas someone taking an ordinary photograph can look at what they will depict. By this logic, someone who closes their eyes, spins around and photographs something without any idea of what would result may not have used intellectual effort in creating the photograph, since they did not see the subject. On this logic you might also question whether a visually impaired person could ever own copyright in an image. Perhaps it is the predefined nature of what is being depicted. Imagine an autopsy room where the deceased is placed on a trolley and photographs are taken by a mortician from predefined angles. To make it even easier, imagine the cameras are already prepositioned and the mortician simply clicks a button. I wonder if copyright would subsist in the photographs that result from this scenario.

vmception 4y ago

I believe UK law is different and less streamlined than that

killjoywashere 4y ago

So, in the US, it’s the patient’s medical record. The healthcare provider has certain custodial responsibilities, so the patient doesn’t have a ‘right to be forgotten’, but the provider does have to cough up a copy on demand. They are allowed to expect a certain cost, though they don’t all impose a cost to the patient (they’d rather keep charging exorbitant rates to CMS than kick the sleeping dog with $10 out-of-pocket reproduction fees).

jacquesm 4y ago

> I see no reason to distinguish the position as between a medical image and any other image. Fortunately various authorities do see such a distinction, resulting in a lot of countries having very specific laws on how medical data is set apart from say your own personal shot of mount Everest. The mountain does not have an interest in the images made of it but I certainly do have an interest in the images made of me. And depending on how much meta data accompanies those images that interest may go up considerably.

ISL 4y ago
The existing rules also convey certain rights to the subject of an image, namely that, subject to various caveats, the image probably can't be used commercially (for the promotion of a product) without a release from the subject. The medical image might be used in an editorial/documentary context without the consent of the subject, but for such an intimate image, the photographer would be wise to ask the subject for consent or ensure sufficient anonymization that the subject simply could not be identified. The rules of medical privacy/records also apply, and may prevent any publication/usage without consent. But, all that said, I suspect that the person who pushed the button on the X-ray machine has initial copyright and that a sufficiently-thoughtful IP agreement for the employee would generally see that copyright transferred to their employer.
- jacquesm 4y ago
  I've been asked for and have given permission for the use of medical images of a close family member, and the whole process gave me good confidence that some hospitals are really respectful towards their patients in this respect. > But, all that said, I suspect that the person who pushed the button on the X-ray machine has initial copyright They probably do not: https://meta.wikimedia.org/wiki/Wikilegal/Copyright_of_Medical_Imaging https://meta.wikimedia.org/wiki/Wikilegal/Copyright_of_Medic...
  - ISL 4y ago
    Whoa. I sit corrected. "the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author." would appear to come pretty close to excluding school portraits from copyright, too. Interesting that it, per the linked article, hasn't yet been tested in US courts.

jstanley 4y ago

> Even though I paid them to take the photos, they own the copyright, unless a release was expressly stated in the contract. I think it's the other way around. If copyright assignment is not expressly stated in the contract, and you are paying someone to create the work, then it is considered a "work made for hire" and the copyright is assigned to the person who paid.

sixothree 4y ago

Unfortunately there are plenty of laws and regulations that make your assessment just plain incorrect.

YPPH 4y ago
Someone here linked a page which said in the US there is no federal case law on whether an X-ray is copyrightable. If that's wrong, what law do you refer to? In some of my other replies you'll see some of my thoughts on how an X-ray may or may not be distinguishable from another ordinary photograph.
- sixothree 4y ago
  https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf https://www.copyright.gov/comp3/chap300/ch300-copyrightable-... Search for medical imaging. Additionally, clinicians are not allowed to share your data without your permission (barring exceptions such as self harm or unconscious). Your data must not be identifiable to persons other than care team members. And on top of that, you have a right to access that data. https://www.healthit.gov/topic/information-blocking https://www.healthit.gov/topic/information-blocking https://www.healthit.gov/topic/patient-access-health-records/patient-access-health-records https://www.healthit.gov/topic/patient-access-health-records...
  - YPPH 4y ago
    That's the Copyright Office's view. What the law means is decided by the judiciary, not the executive.

Hermel 4y ago

In most countries, medical images are not subject to copyright at all as they lack a creative dimensinon and artistic expression.

DannyBee 4y ago

Correct on the theory but wrong on the answer. There is no distinguishing, but copyright only subsists in creative works, not non-creative works. As a result, in the US, the copyright office won't register copyright in medical images produced through most processes (registration is a pre-requisite to suing) As per Compendium: Chapter 300 by the US Copyright Office, "the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author." including "Medical imaging produced by x-rays, ultrasounds, magnetic resonance imaging, or other diagnostic equipment."

YPPH 4y ago
>registration is a pre-requisite to suing If this is so, could you approach the court if you disagree with their interpretation? I'd be surprised if the Copyright Office was the be all and end all of whether copyright subsists in a particular subject-matter.
- DannyBee 4y ago
  I mean, you could, but this is well settled law at this point. The copyright office updated their guidance after the courts decided this one :)
  - YPPH 4y ago
    What's the case? From what I've read, there is no case law on whether an X-ray meets the creativity requirement.