At the opticians, such as Boots, they use photographic technology to capture an image of your eye. Given that the image in reality is my property as it's my eye they're taking a photo of - can I request access to the photo but also not permit any distribution of it, i.e. can I ask them to send me the photo and they having to delete it right after?
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34"Given that the image in reality is my property as it's my eye they're taking a photo of": why would that be the case? And if it were the case, who owns an image of two or more people?– phoogCommented Mar 19, 2022 at 23:24
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8If "in reality is my property as it's my..." were true, every professional portrait photographer (such as school pictures) would be working for free...– Ron BeyerCommented Mar 20, 2022 at 1:48
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1@Barmar in US law, a contractor owns copyright by default, so the photographer would own the copyright unless the contract specifically states that the school owns the copyright, unless the contractor is a school employee whose job description includes making student portraits. In my experience, the photographer is not a school employee. The definition of "work made for hire" may be found at law.cornell.edu/uscode/text/17/101– phoogCommented Mar 20, 2022 at 19:10
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2I doubt it makes very much difference who owns the copyright to school portraits. Assuming the student owns the copyright, the copyright owner does not have the right to demand the original or prints. The copyright owner can prohibit the distribution of the images to others, but the photographer was not going to do that anyway!? Who besides me is going to pay for pictures of my kids?– emoryCommented Mar 20, 2022 at 23:04
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2@emory True for school portraits. Issues have occurred with actresses/models doing nude shots when they're starting out. The photographer owns the copyright and is able to shop them around as they wish (this can be lucrative if the subject becomes famous). Although I think California has a "right to publicity" law that mitigates this in some cases.– BarmarCommented Mar 21, 2022 at 0:28
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2 Answers
Copyright in a photo belongs to the photographer, not to the subject. A picture of S (the subject) is not S's property in any sense, unless the photographer has given or sold it to S.
If the photo was linked to information about S, it might be personal Data under the GDPR (or UK-GDPR) if so, S could request erasure, but various exceptions might apply. But even then S would not aquire the right to distribute or copy the image, or any of the other parts of copyright.
answered Mar 19, 2022 at 21:57
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9Is a photograph taken for medical purposes really an "artistic work" that's possible to copyright? Does the same apply to medical X-rays, MRI, and CT? Also, could it be considered a work for hire, because the patient requested/paid for it?– BarmarCommented Mar 20, 2022 at 8:07
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11I do not think it is required that the "photo was linked to information about S" for GDPR to apply. A photograph of the retina (or iris, but that is less likely to be taken by an optician) is quite enough to identify an individual, and has been proposed as a form of identity verification. Commented Mar 20, 2022 at 9:23
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5@Barmar A photograph does not need to be an "artistic work" to be copyrightable; it just needs to be a "creative work", and the act of creating a photograph meets that description regardless of context or the photographer's intent.– kaya3Commented Mar 20, 2022 at 10:53
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2@kaya3 What's the legal distinction between "artistic" and "creative"?– BarmarCommented Mar 20, 2022 at 15:50
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4@Barmar The distinction is that copyright applies to a "creative work" whereas the term "artistic work" does not (as far as I know) have a legal meaning in this context; and the everyday meaning of "artistic" is mostly unrelated to whether a work is copyrightable.– kaya3Commented Mar 20, 2022 at 17:57
David Siegel's answer is the correct one from a legal point of view, but I wanted to add some additional information:
The software that their machine uses is likely to store the image in a specialist format. GDPR requires portability of data. This means that if you request the image then they are required to give it to you in a format which can be imported by a different optician to use it for similar medical purposes. I do not think it means that they would have to convert it to a general purpose image format that you could use (for example) to print it out and put it on the wall. They are not set up for this and will not know how to do it, even though it is technically possible.
As an example, I once asked at the dentist for a copy of my x-ray, because I was at an out-of-hours place. The dentist promised he would send the image to my usual dentist. He didn't have a clue how to export the file from their system, but he also let me take a photograph of the x-ray on his computer screen using my phone.
When I got to my normal dentist he said he had not received information from the other place and so I would have to have another x-ray. I showed him the picture on my phone and he was happy that it was good enough to see what he needed to, so in this way I saved myself from an unnecessary dose of radiation.
I don't think I had the right insist on taking a photo of the x-ray, because they are allowed to take up 30 days to respond to GDPR requests, but in this case they were willing to do the simplest thing, which served my purpose.
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1"Under this right, you can ask a data controller to transmit your data to another data controller, if such transmission is technically feasible." dataprotection.ie/en/individuals/know-your-rights/…. Commented Mar 20, 2022 at 16:15
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In these examples I suspect a direct transfer from one optician or dentist to another optician or dentist is certainly technically feasible, but that doesn't mean that the individual you deal with will know how to do it!– Tom VCommented Mar 21, 2022 at 11:09
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Just a data point, my optician has always been happy to send me my retinal scans in a normal image format (I suspect JPEG). In my case it was because I wanted to experiment with image registration algorithms to see if they could track my "issue" (just for amusement). Commented Mar 21, 2022 at 15:04