The San Fransico Gate has some reservations anointing as "art" scientific imagery created for the lab, not the studio. Displayed in "Brought to Light: Photography and the Invisible, 1840-1900" at the San Francisco Museum of Modern Art, photographs created using x-rays and advances in photo chemistry are serving double duty as lessons in art (not scientific) history. VARA which apply to photographs (as "works of visual art") be of any use – since the images were not "created for exhibition purposes only."
Does copyright law think any different?
Fifty years ago, the line between "art" and "industry" might have mattered for copyright’s sake. Today, those terms are not (at least, on the record) consulted when determining whether or not a work may be protected by copyright. This came to be because whenever it mattered – whether the dispute revolved around an embellished drawing used as an advertisement, a carefully staged photograph of a basketball player, or a sculpture which doubled as a lamp base – tests were derived which enabled a judge to dissect the creative process from the commercial process. Judges could find that minimal level of originality necessary for the protection of intellectual property laws in any effort not dictated by concerns for utility and which required some degree of artistic discretion to bring about.
These tests perform well for the artist if at the time of creation, some level of artistic motivation turned the wheels of invention. But how should we treat such repurposed images?
A photo of a snowflake under a microscope, created with no consideration of lighting, subject placement, or purpose other than "to show what the thing is" might not have the requisite level of creativity necessary for copyright to hold. Neither would the protections of VARA which apply to photographs (as “works of visual art”) be of any use – since the images were not “created for exhibition purposes only.”
Certainly the report which accompanied the photos could be protected, as could the collection of images in the exhibit. However, it may be that any individual image (isolated from other elements) is free for the appropriating. Good result? Should the copyright arbiters take into consideration the general consensus of curators across America as a new factor in the originality/usefulness analysis?