Wikilegal/Copyright of X-Ray Images
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When determining whether a given person holds copyright in x-ray films, there are two questions to answer. First, one must determine whether copyright law even protects the image. If a valid copyright exists, then one must figure out who holds that copyright, and whether any other parties might also have rights to the image.
Assuming copyright exists, then the person who holds the copyright to the image has the authority to license it however they please (including CC BY-SA). If no copyright exists in the image at all, then anyone may copy and distribute the image. In both cases, however, additional doctrines, such as privacy law, right of publicity law, and patient confidentiality laws (for example HIPPA), may restrict the publication of the image.
Copyrightability of X-Rays 
We could not find any case law directly addressing the issue of the copyrightability of x-ray images. Courts would, however, likely analyze the copyrightability of x-ray images in the same way that they analyze the copyrightability of regular photographs.
Copyrightability of Photographs in General 
As with all copyrighted works, for someone to copyright a photograph, that photograph must contain “a degree of originality.” In clarifying this requirement, the Supreme Court explained that, in order for works to have a copyright, the work must possess “at least some minimal degree of creativity.” Yet this creativity does not have to pass a very high threshold, as the court held that copyright existed “no matter how crude, humble, or obvious” the particular spark of creativity.
The Supreme Court specifically applied these principles to photographs in a late 19th century case, Burrow-Giles Lithographic Co. v. Sarony. At the time, courts had not definitively determined if photographs could be copyrighted, and Burrow-Giles argued that in distributing photographs of Oscar Wilde, they had not violated any copyrights, as the photographs were mere reproductions of Wilde’s physical features. The Court however, held that, to the extent a photographer contributed original elements above the mere reproduction of Wilde’s countenance, that photographer could claim copyright in the resulting picture. A photographer’s contributions could include posing the subject, selecting the backdrop and surroundings, using different lighting and camera settings to achieve a particular effect, or getting the subject to take a particular pose or expression.
Despite the multiple factors the Court used in Burrow-Giles to analyze the photograph, there is no definitive test to determine the copyrightability of a given photo. Courts have looked at creative poses, background, lighting, shading, the layout of the picture, angles shot from, post-production enhancement, and the timing of the picture in deciding if the photographer had contributed the needed creative spark. The 9th Circuit in particular has taken an expansive view of the elements that might provide the necessary originality to make the photo copyrightable. 9th Circuit cases have identified “selection of subject, posture, background, lighting, and perhaps even perspective alone” as elements that contribute to a photograph’s copyrightability.
Although these cases provide a good overview of the types of elements that a court would consider in determining the copyrightability of x-ray images, they unfortunately do not provide a hard rule to follow. The circumstances of each x-ray will have to be examined, and the amount of creativity and original input provided by the person taking the image will determine whether copyright protection exists.
Ownership of Copyright in X-Rays 
Generally speaking, the person who takes a photograph holds any copyright in the photograph. Copyright accrues to the photographer because the photographer provides the necessary originality. The subject of the picture, while they may have legal rights under the doctrine of the right of publicity, does not generally have any claim to the photograph’s copyright.
Unfortunately, the situation of x-rays will not necessarily conform to a simple solo photographer model. The necessary creativity and originality could arguably come from a physician who orders an x-ray taken at a particular angle or for a certain length of time, rather than the technician who carries out the orders. If multiple people provide original elements with the goal of producing a common design, then these people might share the copyright as joint authors.[note 1]
The situation gets more confusing when the doctrine of work for hire comes into the picture. Works prepared by employees within the scope of their employment qualify as works for hire, and in these cases the employer holds the copyright, not the employee.[note 2] Furthermore, contracts between hospitals, radiology technicians, and physicians might explicitly assign copyrights to a particular party.
Given these complications, any analysis of who holds the copyright in a particular x-ray will have to consider the specific facts of the place where the x-ray was taken. Depending on the circumstances, a radiology technician, radiologist, consulting physician, physician group, hospital, or some combination thereof, may hold any copyright that exists.[note 3]
- This summary considerably simplifies the joint authorship doctrine, and any question of whether joint authorship exists for a given x-ray will require a detailed examination of the facts and circumstances of the x-ray’s creation.
- The work for hire doctrine is more complex than the simple analysis presented here. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) the Supreme Court established a multi-factor test for determining whether a given work qualifies as work for hire. Any work for hire analysis should apply this test to the facts of the case.
- Some hospitals and medical associations have licensing information available on their websites, and there are online compilations of freely licensed medical images, such as http://toby.library.ubc.ca/webpage/webpage.cfm?id=518
- Cf. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1263 (10th Cir. 2008) (holding that, in the absence or prior precedent, the copyrightability of digital 3D wire frame models of cars should be analyzed under the same originality criteria as photographs).
- Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991).
- Feist, 499 U.S. at 345
- Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59 (1884)
- Burrow-Giles, 111 U.S. at 60.
- See SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 309 (S.D.N.Y. 2000) (citing examples of cases where other factors were considered)
- See Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1076-77 (9th Cir. 2000) (“[A]lmost any[ ] photograph may claim the necessary originality to support a copyright merely by virtue of the photographers' [sic] personal choice of subject matter, angle of photograph, lighting, and determination of the precise time when the photograph is to be taken. . . .This circuit is among the majority of courts to have adopted this view.”) (quotations omitted)
- United States v. Hamilton, 583 F.2d 448, 452 (9th Cir.1978)).
- 1 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 2.08[E] (Matthew Bender, Rev. Ed.) (citing Landau v. Cosmetic & Recon. Surgery Ctr., Inc., 158 F.R.D 117, 119 (N.D. Ill. 1994).
- 17 U.S.C. § 201(a), 17 U.S.C. § 101 (“A ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”) See also Nimmer on Copyright § 6.03.
- 17 U.S.C. § 101