909.3 (B) X-Rays, Medical Imaging, and Non-Medical Echo Sonography
As a general rule, the U.S. Copyright Office will not register medical x-rays or imaging, regardless of whether they are claimed on an application as photographs, images, artwork, or graphics. These types of images do not typically possess a sufficient degree of creativity to sustain a copyright claim.
NOTE: Medical x-rays or imaging are not considered useful articles for purposes of registration because their only utilitarian function is to convey information. 17 U.S.C. § 101 (definition of “useful article”). As such, they are not subject to the separability test described in Section 924.3.
In most cases, x-rays or other medical images are produced without any creative input from a human author. And the appearance of the resulting image is dictated entirely by functional requirements, such as obtaining an image that optimally permits the diagnosis of an injury or disease. As a result, these types of images merely contain a de minimis amount of expression, if any. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59 (1884) (“[T]he ordinary production of a photograph” with “no place for novelty, invention, or originality” may result in “no protection” for that image).
The following is a nonexhaustive list of such generally uncopyrightable works:
• Medical x-rays.
• Magnetic resonance imaging.
• Echocardiography.
• Echo mammography.
• Varieties of ultrasound.
• Iodinated ultra venous imaging.
• Angiography.
• Electrocardiography.
• Three-dimensional computed tomography.
• Positron emission tomography.
• Electroencephalography imaging.
• Computed axial tomography.
For the same reasons, the Office will not register surveys of water and land masses that are captured by the data that echo-sounders and similar equipment produce.
When x-rays or other medical images are used to illustrate a literary work, such as medical textbooks, excavation training guides, and journal articles, the Office may accept a claim in a “compilation of images,” “text and illustrations,” “text and illustrative diagrams,” or “text and figures.” The registration for such works will cover the text and the copyrightable compilation authorship, but not the underlying x-rays or medical images.
Similarly, applicants may use terms such as “illustrations,” “figures,” or “illustrative diagrams” to describe x-rays or medical images that have been modified with words, abbreviations, symbols, or color indicators, such as arrows, markers, or pointers that illustrate topics discussed in the accompanying literary work. In such cases, the Office may register the modified image as a technical drawing if it is sufficiently creative, but the Office will not accept a claim in the underlying image itself.
These types of technologies were created for diagnostic or other functional purposes, but they can conceivably be used in an artistic manner. If an x-ray machine or medical imaging device is used as a tool for an author’s creative expression, that expression may be registered as a pictorial or graphic work if the resulting image contains a sufficient amount of artistic expression created by a human author. In such cases, the author’s expression must be recognizable from the deposit copy(ies), rather than the author’s explanation of his or her creative process.
Examples:
• Xavier Xander files an application for an x-ray of a broken arm and describes his authorship as a “photograph.” The registration specialist will refuse to register the claim.
• Xenia Xon submits an application for an x-ray of a farm animal that has been modified with bright red colors and original images of processed food products. She describes her authorship as “two- dimensional artwork.” The registration specialist may register the claim, because the creative expression in the work as a whole is apparent from the deposit copy.
• Xandra Xee submits an application for an x-ray of a creative collage consisting of flowers and cookies. She describes the authorship as a “photograph.” Because Xandra used an x-ray machine as a creative tool, rather than a diagnostic device, the resulting image would be registrable.