Wikilegal/Copyright of Medical Imaging

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When determining whether a given person holds copyright for medical imaging such as x-rays, 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 HIPAA in the United States), may restrict the publication of the image.

Works created in the United States

As per Compendium: Chapter 300 by the US Copyright Office, "the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author." including "Medical imaging produced by x-rays, ultrasounds, magnetic resonance imaging, or other diagnostic equipment." This position differs from the broad copyright protections afforded to photographs. While the Copyright Compendium is an agency statutory interpretation and not legally binding, courts are likely to give deference to it if they find it reasonable. Yet, there is no U.S. federal case law directly addressing the issue of the copyrightability of x-ray images. Nevertheless, it can be regarded as justified to mark any work of medical imaging created in the United States as Public Domain.

It is advisable to have informed consent from the subject whose medical imaging is published, although US law does not explicitly require it for all cases (see Privacy protection section below). Also, added graphics such as annotations may be copyrightable (see Derivatives section below).

Privacy protection

X-ray images are generally covered by laws of medical privacy. Most notable among them the 1996 Health Insurance Portability and Accountability Act (HIPAA). HIPAA sets restrictions for health care providers on utilizing Protected Health Information (PHI), which is any individually identifiable information relating to the past, present, or future physical or mental health of any individual. While there has not been any definitive legal authority on this topic as yet, at least one study has indicated that x-ray images may contain biometric information that can uniquely identify a person, and so may qualify as PHI. Individual institutions may have differing policies on sharing x-ray information, so it is advisable to check affiliated institutions' social media or privacy policies to determine appropriate use limitations and consent requirements, if any. Neither HIPAA nor the policies used as examples here specifically address x-rays.

• For general Wikimedia policy on privacy protection, see Commons:Personality rights.
• For general information about patient images, see Commons:Patient images.

Derivatives

In a derivative of a medical image created in the U.S., added annotations and explanations may be copyrightable, but the medical image itself remains Public Domain.

An extensive definition of the term is given by the United States Copyright Act in 17 U.S.C. § 101:

A “derivative work” is a work based upon one or more preexisting works, such as a translation... art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

17 U.S.C. § 103(b) provides:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

Regarding image annotations, a certain amount of originality in shapes may be copyrightable as evidenced from non-medical work, but letters (no matter how ornate), simple geometric shapes, and/or simple shapes (i.e. arrows) are generally not copyrightable.

From books, journals and websites

Works including Public Domain images, such as books, journals and websites, are generally copyrightable as a whole, but this doesn't change the status of each individual Public Domain image. Therefore, it is arguably legal to use medical images from books, journals, and websites if it is otherwise in line with the aspects presented in sections above, if there is evidence that those medical images were acquired in the United States (which may not necessarily be the case even if the work is published in the U.S.).

Nevertheless, there is no precedent court decision in the matter, so publishers may still possibly start a legal process against such usage from their works. Therefore, the safest method is to ask the publisher for permission (preferably through OTRS) for such usage, or find an image with a compatible license instead.

Non-medical radiography

A non-medical radiograph.

Compendium: Chapter 300 may not apply for non-medical radiography.

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. Nevertheless, for medical imaging, originality/creativity could possibly include image annotations.

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.

Works created in Germany

In Germany x-ray images as well as MRT, ultrasound, PET and scintigraphy images are protected by (copyright-like) Related rights or neighbouring rights. This protection does not require creativity (as would be necessary for regular copyright protection) and lasts only for 50 years after image creation, if not published within 50 years, or for 50 years after the first legitimate publication. The letter of the law grants this right to the "Lichtbildner"[8], i.e. the person who created the image. The literature seems to uniformly consider the medical doctor, dentist or veterinary physician as the rights holder, which may result from the circumstance that in Germany many x-rays are performed in ambulatory setting and that the doctor prescribes the settings for the individual imaging.

Works created in the United Kingdom

Medical images created in the United Kingdom will normally be protected by copyright due to "the high level of skill, labour and judgement required to produce a good quality x-ray, particularly to show contrast between bones and various soft tissues". The Society of Radiographers believe this copyright is owned by employer (unless the radiographer is self-employed -- though even then their contract might require them to transfer ownership to the hospital). This copyright owner can grant certain permissions to whoever they wish, without giving up their ownership of the copyright. So the hospital and its employees will be given permission to use such radiographic images for the various purposes that they require for medical care. Physicians employed at the hospital will, in their contracts, be given the right to publish patient information in journal papers or books they write (providing they are made anonymous). Patients may also be granted permission to "do what they like with" their own image -- whether this is informal or formal doesn't much matter -- nobody is going to be suing the patients if they upload their MRI to Facebook.

The UK General Medical Council's ethical guidelines indicate that the Council does not require consent prior to secondary uses of x-ray images.

Works created in Sweden

The Cyber Law in Sweden (pg. 96) states: "Pictures can be protected as photographic works or as photographic pictures. The former requires a higher level of originality; the latter protects all types of photographs, also the ones taken by amateurs, or within medicine or science. The protection requires some sort of photographic technique being used, which includes digital cameras as well as holograms created by laser technique. The difference between the two types of work is the term of protection, which amounts to seventy years after the death of the author of a photographic work as opposed to fifty years, from the year in which the photographic picture was taken."

Medical imaging may possibly be included in the scope of "photography", similarly to a U.S. statement that "MRI images, CT scans, and the like are analogous to photography."

• A case discussion in Wikimedia Commons, resulting in a request to the radiology department to approve its usage.

Ownership 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.

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. 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.

Micrographs

Micrographs are images created from microscopy, and share similar issues with medical imaging. Legal precedence is lacking. Still, microscopy views that are selectively photographed by a person can arguably be said to generally have enough creative involvement to justify a copyright claim. On the other hand, whole slide scans can arguably be regarded as Public Domain (including derivative works such as selected magnified views thereof). In the U.S., whole slide scans can be regarded as Public Domain as products of an automatic process as per Compendium: Chapter 300.

• 
  Artistic micrograph (arguably copyrightable)
• 
  Whole slide scan and magnified view thereof (arguably Public Domain)

See also

• Commons:Personality rights.
• Commons:Patient images

Public Domain tags at Wikimedia Commons

• {{PD-US-Medical imaging}} for medical imaging created in the United States
• {{PD-US-Slide scan}} for microscopy slide scans created in the United States
• {{PD-medical}} for images in any country where the same principle may be applied