A friend recently posted an X-ray of his ankle replacement on Facebook, which led me to wonder “who owns the copyright” to that image?
In the U.S., HIPAA (Health Insurance portability and Accountability Act of 1996) typically confers the ownership of medical records to the healthcare provider that created it, but The Privacy Rule gives the patient “with few exceptions, the right to inspect, review, and receive a copy of your medical records and billing records that are held by health plans and health care providers covered by the Privacy Rule.”
As far as medical imaging goes, the patient can request a hard (e.g. X-ray) or electronic copy of the imaging, and the healthcare provider can charge a fee for providing that information. But who actually owns the copyright? The technician? The radiologist? The patient?
According to The Compendium of U.S. Copyright Office Practices: Chapter 300 (revision 9/29/2017), medical imaging is NOT copyrightable.
Similarly, 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. Examples:
· Medical imaging produced by X-rays, ultrasounds, magnetic resonance imaging, or other diagnostic equipment
Incidentally, the same chapter specifically states that “A photograph taken by a monkey” also cannot be registered for a copyright.
The Wikilegal states “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.”
Of course, this assumes at the very minimum that personally identifiable information isn’t a part of the medical imaging. Even a serial number on a medical device could potential violate HIPAA privacy laws. And many artists have used X-rays for non-diagnostic purposes in their art, which would be covered by U.S. copyright laws.
Disclaimer: This post should not be construed as legal advice. Please consult a lawyer for specific guidance on copyright.
About the author: Allen Murabayashi is the Chairman and co-founder of PhotoShelter, which regularly publishes resources for photographers. The opinions expressed in this article are solely those of the author. Allen is a graduate of Yale University, and flosses daily. This article was also published here.