Re: Copyright in X-ray works

Lee Kim and Wallace J.McLean responded to Raza Ahmed Siddiqui's posting, but I'd like to offer some additional observations.

First, both of these postings seemed to assume that U.S. copyright law applied, or that it is sufficiently analogous to Indian copyright law, which might not be true in this area.

In any event, this is an area pushing the limits of the idea/expression dichotomy between that which is protected and that which is unprotected. It's tempting to say that x-rays are purely mechanical, but automated point-and-shoot photography, especially digital photography, starts to look that way, and it's interesting to look further at the process of where to draw the line. In the U.S. at least, in the Bridgeman decision, certain reproductions of artwork were found not to have sufficient originality for protection, But perhaps a case can be made that the radiographer is exercising sufficiently minimal control in posing the subject etc. to make the x-ray deserving of copyright protection.

In the Siqquidi example, although the doctor claims copyright, whether he is entitled to the copyright, if any, would depend on whether there is any copyright and whether there is a work-for-hire doctrine in India, which might make the doctor's employer (if any) the correct copyright claimant. In the U.S., the work-for-hire doctrine evolved over the years, and without knowing more about Indian law, I wouldn't hazard a guess. Under current U.S. copyright law, one could argue that any copyright would vest in the doctor (or the doctor's employer, depending on the factual situation), and that an x-ray does not fall into one of the categories eligible for work-for-hire treatment by written agreement. Former U.S. law looked at the employment relationship differently, and did not have the second test in the for work-for-hire definition included in 17 U.S.C. 101. The commissioning party (i.e., the patient) might have been an employer for hire in these situations before the 1976 Act went into effect in 1978. The categories of works eligible for protection have also developed over time; there were times when photographs were not eligible, sound recordings were protected under state law until late in the 20th century, and architectural works form one of the most recent categories of protected works.

 From the patient's perspective, however, it would be interesting to know to what extent Indian law recognizes by common law or statute the right of publicity (part of the right of privacy), and whether such right extends to x-ray images of one's person. Then regardless of whether a copyright existed or who owned such a copyright, it might not be possible to exploit it without the patient's permission. Whether such permission would need to be in writing or oral could be another question raised, as might the extent of whatever agreement there might have been between doctor and patient. In Lee Kim's comment about the veterinarian, the fact that the subject is a cat removes this complication, since only humans have such rights, and focuses the issue on the coprrightability of x-rays generally.

In short, my suggestions are limited to asking more questions, rather than focusing on the answer to the query posted.

At 02:35 PM 3/15/2005, you wrote:
>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
>ADVOCATE
>RAZABHAI (SM)
>INTELLECTUAL PROPERTY LAW ATTORNEYS
>HYDERABAD, INDIA
>Mob : 091-9246531923
>Email : razabhai[_at_]yahoo.com
>URL : http://www.razabhai.com
>
>
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S. Martin Keleti
Cohen and Cohen
740 North La Brea Avenue
Los Angeles, CA 90038-3339
323.938.5000
323.936.6354 fax Received on Thu Mar 17 2005 - 02:35:16 GMT