Re: Re: Copyright in X-ray works

Leaving aside for the moment whether any creativity is involved in this situation (something similar was said about photographs over one hundred years ago), the more interesting question is whether the patient should be deemed the "author" of the work, since s/he clearly has "employed" the services of the radiologist. That is, neither the Doctor nor the Hospital is the employer -- the patient is.

Juan Saavedra Castro

On 3/15/05 7:25 PM, "LKim[_at_]cohenlaw.com" <LKim[_at_]cohenlaw.com> wrote:

> Here are a few URLs which may be of interest
> <http://www.law.duke.edu/journals/dltr/articles/2001dltr0024.html> and
> <http://jolt.law.harvard.edu/articles/pdf/v10/10HarvJLTech281.pdf>.
>
> My impression, which happens to coincide with Carson's point of view
> as reflected in the second URL cite above, is that when one takes an x-ray,
> MRI, CT, etc., the creativity involved in doing so is most likely nil. I
> used to work in the digital medical imaging field (in a previous life).
> Because the act of taking such images may lack even a modicum of
> creativity, I have doubts as to whether the originality requirement would
> be truly met.
>
> In my opinion, the key question as to whether copyrightability exists
> lies within whether the created work involves any originality (or whether
> it's purely mechanical), not necessarily a certain subject matter which it
> may be possibly analogous to (e.g., x-rays, CTs, MRIs, akin to PGS works
> (pictorial/graphic/sculptural).
>
> Regarding ownership, I would undertake the following analysis:
> 1) Who created the work?
> 2) Was it a work made for hire? (e.g., if a radiologist performs an x-ray,
> CT, or MRI for the hospital, then the hospital most likely owns the work)
> 3) Was the work subsequently transferred to another?
> Etc.
>
> (Under the doctrine of work made for hire, the author is deemed to be
> the employer, not the employee, when the work is done in the course and
> scope of the employment relationship. This assumes that the radiologist is
> an employee of the institution (I would assume that they usually are). (I
> doubt that the statutory provision relating to work made for hire for
> certain specially commissioned works would apply here.))
>
>
> ------------------------------------------
>
> Lee Kim, Esq.
> Patent Agent
> Cohen & Grigsby, P.C.
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>
>
> "Raza Ahmed
> Siddiqui"
> <copyright[_at_]razabh To
> ai.com> "CNI-COPYRIGHT -- Copyright &
> Sent by: Intellectual Property"
> "CNI-COPYRIGHT -- <CNI-COPYRIGHT[_at_]cni.org>
> Copyright & cc
> Intellectual
> Property" Subject
> <CNI-COPYRIGHT[_at_]cn [CNI-(C)] Copyright in X-ray works
> i.org>
>
>
> 03/15/2005 05:35
> PM
>
>
> Please respond to
> "CNI-COPYRIGHT --
> Copyright &
> Intellectual
> Property"
> <CNI-COPYRIGHT[_at_]cn
> i.org>
>
>
>
>
>
>
> Dear Friends
>
> A few years back there was discussion on this forum regarding copyright
> protection to x-ray's. I hope members out there have more updated
> information on the said issue and would share it with me.
>
> Currently the query is whether Copyright in X-Rays are treated on par
> with photographs..and secondly who is the owner..whether it is the
> patient at whose instance the x-ray is taken and he is the one who
> compensates for the work..or is it the
> hospital/institution/radiographer who are considered as the authors of
> such work??
>
> I have a peculiar situation where in a doctor claims copyrights in age
> old x-ray exhibits of his patients who didnt pay up because they were
> poor..and hence he claims rights over them..and uses them for
> commercial purpose and now wants to enjoin others from using it as
> reference in their respective works...
>
> Hoping with some valuable suggestions..
>
> Regards,
>
> Raza Ahmed Siddiqui
> B.Com(H),LLb,PGDIPR,GCIP
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> RAZABHAI (SM)
> INTELLECTUAL PROPERTY LAW ATTORNEYS
> HYDERABAD, INDIA
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> Email : razabhai[_at_]yahoo.com
> URL : http://www.razabhai.com
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Received on Thu Mar 17 2005 - 02:35:16 GMT