On Aug 22, 2012, at 9:31 AM, Anthony <wikim...@inbox.org> wrote:

> On Wed, Aug 22, 2012 at 10:22 AM, Anthony <wikim...@inbox.org> wrote:
>> On Wed, Aug 22, 2012 at 9:14 AM,  <birgitte...@yahoo.com> wrote:
>>> 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?
> 
> If you define "diagnostic image" as "an image created solely for the
> purpose of making a diagnosis", then I suppose you've got a clear-cut
> utilitarian work.  On the other hand, this wouldn't include an X-ray
> which was made by someone who knew the X-ray was going to be used in a
> medical book.
> 
> 

If any such images exist where the technician knew to aim for something more 
than a mere depiction, I would agree that things become more questionable. if 
the technician is actually credited by the textbook I personally would find a 
different image to use, because why bother about it? But just the fact that the 
technician knew something might it be used in a larger work (x-rays don't have 
preview), wouldn't flip the copyright switch all by itself. Presumably the 
textbook in question is for instructing someone on how to interpret a 
diagnostic image. Presumably an actual diagnostic image would be selected for 
inclusion in such a textbook.  Now if a technician, while working to create 
diagnostic images, aimed to create an image that might *also* be displayed in 
an art gallery, then I wouldn't include that image in my general conclusion. 
But the image has to stand on its own; either was never copyrightable wherever 
it might be used, or it has always been copyrighted since the moment it was 
created until the copyright is waived or expires.

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.  If something makes a particular X-ray 
really stand out from the vast majority, something about that makes an editor 
want to use *that* one instead picking another from the mountain on diagnostic 
images. I would suspect that in such a case the uncopyrightable conclusion 
would be less certain than it is for the vast majority. We are never going to 
be able to actually determine the copyright on every single image uploaded. 
Never. Not even with infinite resources. The unknowable category wrt copyright 
is significant. It is just tiny subset of all works existing, but not so tiny 
that you will fail to come across it now and again. If an image is borderline 
and easily substituted; please refrain from wasting the communities' time and 
energy on it.  Substitute it with an equivalent image with superior provenance. 

Rule of thumb (that I haven't thought about very long and may later disagree 
with): If a specific image truly is uncopyrightable as a utilitarian image, 
then it should be very easy to replace with another equivalent image. If a 
specific image doesn't seem to have any *possible* equivalents, it probably 
isn't a utilitarian image.

Another rule of thumb: Most images, whatever they depict, are also *designed* 
to be pleasing to human aesthetics. That is usually the part that creates the 
copyright, the choices that are made to produce a certain aesthetic. When an 
image is designed without any consideration for aesthetics at all (i.e. an arm 
is placed on a plane and arranged at a certain angle in order to best diagnose 
any possible damage to the elbow joint), then it is a very good candidate to be 
considered a utilitarian image. Consider any stock story with a comic and a 
tragic version, consider all the reinterpretations that have been done of 
Shakespeare's plays. The new derivative is copyrighted on the weight of the 
aesthetic choices. Not idea of boy meets girl. Copyright is about how something 
is expressed.  The harder it is to express the same information with different 
aesthetics, whether it is the phone numbers for businesses in a list or the 
soundness of a joint on an image, the harder it is to attach copyright to any 
particular expression of this information.

Birgitte SB
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