I met Bill Westwood last year when he contacted me to very kindly ask if I would like to speak to the Association of Medical Illustrators (AMI) about copyright and artificial intelligence. I was aware of medical illustration as a specialized field but didn’t know much about it until I drove up to Albany to visit Westwood at his studio. In business for himself since 1982, the tools and artifacts in his workspace span old and new school—ink and paper alongside stylus, tablet, and large-screen monitor. The bookshelves indicate the substantial amount of research and medical training involved in the craft, and yes, a skull sits on one of the tables, completing the Vanitas tableau.
In a copyright context, I was curious about the creative aspects of medical illustration, assuming the specialty demands rigorous attention to unprotectable facts serving a highly utilitarian purpose. And although that’s true, perhaps the creativity of the illustrator is most essential when the utilitarian demand is most critical. For instance, Westwood showed me illustrations he was making for a plaintiff in an injury lawsuit and described the process of achieving clinical accuracy that also conveys the nature of the injury to a lay jury. I winced at one of the drawings, and he said, “See, that’s just about the right response. Not freaked out, but you get it. Because by the time the plaintiff is in court, she has already healed, so the illustrations tell the jury what really happened to her in the accident.”
A leader in the field and recipient of multiple awards, Westwood was introduced to medical illustration in 1966 during his junior year at Georgia’s Mercer University. A professor had given him a poor grade in a design class, and when he confronted her about it, the ensuing conversation included her recommendation that he look into the medical specialty. Westwood had never heard of medical illustration, but when the head of the art department arranged a visit to the graduate program in Augusta—one of four in the country at the time—Westwood was hooked. “Within a matter of a couple of hours, my mind was totally blown, and I said this is what I gotta do,” he explains in a video profile produced by WMHT.
Drafted into the Infantry during the Vietnam War, Westwood had to postpone the final year of the three-year graduate program, but he was fortunate to avoid combat when he was attached to the 23rd Medical Illustration Detachment with the Army’s 2nd General Hospital in Landstuhl, Germany. After the service and completing the Augusta program, he worked as the Surgical Illustrator at the Mayo Clinic, where he met the Head of Plastic Surgery, Dr. Ian Jackson, a star in the field. In 1982, Westwood opened his own studio, and shortly thereafter, Dr. Jackson contacted him about providing the illustrations for what would become a landmark textbook entitled Jackson’s Local Flaps in Head and Neck Reconstruction.
First published in 1985 by Mosby, Westwood drew 527 illustrations for the book and, by contract, retained his copyright rights in the images. Dr. Jackson has passed away, but his original textbook is now in its 3rd edition, retailing on Amazon for over $300, and is today published by Thieme. One problem, though: around 400 of the now-colorized original illustrations still appear in the book without attribution to, or license by, Bill Westwood. After attempting, through his attorney Ed Greenberg, to resolve the matter outside court, Westwood filed suit last month against the publisher, naming current authors, Drs. Peter Neligan, David Mathes, and Brian Boyd as co-defendants. A response is due in a few weeks, and I am curious as all getout as to what the defense will say about this one.
The alleged infringements appear to suggest one those instances when intellectual property is transferred by sale—Thieme is the third to publish the title—but nobody is being careful about all the rights and contracts attached to the property. Either that, or someone made an affirmative and unwise decision to both prepare unlicensed derivatives of Westwood’s illustrations and to remove his name and notice of copyright from the book.
Although a notice of copyright is no longer required, removal of a notice with intent to infringe is a violation of law, and at the very least, the removal of a notice weighs against any attempt by a defendant to claim “innocent infringement.” Also, it seems rather difficult to claim innocence while revising material in a nearly 400-page textbook that’s been around for 40 years. Willfulness is a big deal here because if Westwood proves the infringement was willful, the maximum statutory damage award is $150,000 x “at least” 397 images, according to the complaint. That’s about $60 million plus attorney fees, if the case goes that far.
I contacted Ed Greenberg, who’s been practicing copyright law for about as long as the textbook has been around. “I don’t go to court without a solid case, and we sent Thieme a seven-page letter asking them if they could produce any exculpatory evidence—anything showing that they had reason to believe they had a right to use Bill’s illustrations. And we received nothing.”
In the same way that Westwood’s illustrations provide the above-mentioned injury case with insight that words cannot convey, I imagine the customer who buys Dr. Jackson’s book would find its value substantially diminished without the illustrations. As such, and given the scope of the entire project, a case like this confuses me. I get why certain parties, especially individuals, make infringing use of one work or make poor assumptions about fair use. But Thieme is a global operation as a publisher. How does nobody check the licensing status of several hundred images being reused in a new edition? You would think somebody might ask the $60 million question, but we’ll see what Thieme et al. say in response.
