Re: Re: CR in X-ray works- Expressive?

I would beg to differ that the key question is examining the intent of the individual creating the work.  If the work, as produced, has at least some originality, it is copyrightable -- never mind the subject intent of the creator.  Accordingly, there are more things that can fuel originality than just the need to be expressive or have an expressive bent.  This is the reason why many laypeople do not understand that technical works can be copyrightable (at times), just as works of fiction and works of fine art may be copyrightable.

Now, rather than looking at the creator's subjective intent, I believe that a court, when examining whether originality is indeed present, would look towards whether there is any originality in the steps in producing the work (as well as whether there is any originality present in the end product).  See, for example, Burrow-Giles Lithographic Co. v. Sarony.

When a radiology technician takes an x-ray, CT, MRI, US of an individual, I highly doubt that there is any originality involved in the process (let alone the end result). It is a very "mechanical" process and it involves no creativity in terms of judgment (as far as how one goes about doing the process that yields the medical image as an end result).

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Lee Kim, Esq.
Patent Agent
Cohen & Grigsby, P.C.
11 Stanwix Street, 15th Floor
Pittsburgh, PA 15222
Direct dial: 412-297-4969
FAX: 412-209-1965
E-mail: lkim@cohenlaw.com

 
"Agenbroad, James \(Civ,ARL/CISD\)" <jagenbro@arl.army.mil>
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03/23/2005 12:10 PMPlease respond to"CNI-COPYRIGHT -- Copyright & Intellectual Property"

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Subject   [CNI-(C)] Re: CR in X-ray works- Expressive?
 

The original question regarded Indian law, and I have to say, I have NO
idea of the caselaw there.  However, I would hope that in the U.S. there
would be NO copyright in medical x-rays.  They simply aren't expressive.
You shouldn't get too hung up on the technology used to creat the image,
a pencil could be used to fill out your 1040 (not copyrightable) or to
sketch your mother(copyrightable).  The core question is the intent of
the person doing it, and I don't believe that expressive or aestetic
considerations are normally part of the technicians intent.
In a general way, I think one of the areas where copyright law is
showing strain is where people have tried to stretch it to cover non(or
minimally) expressive works. Feist put the smackdown on copyrighting
mere alphabetized lists where no selection of items was done.  But I
also think that copyright is poorly suited to protecting functional
items like state laws, standards, recepies, or even software.  In those
cases, it seems to me that the idea/expression line would indicate very
little protectable content.

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