Let me preface this post by reminding folks that IANAL (I am not a lawyer).

The U.S. government policy on photographs and copyright is pretty straightfoward: photos produced by federal employees as part of their job responsibilities are “not subject to copyright in the United States and there are no U.S. copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work.”

Why, then, is the Obama White House asserting that no one but “news organizations” can use its Flickr photos? Why is it asserting that manipulation is prohibited? Why is it asserting that photos may not be used in “commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House”?

The “easy” answer is that this appears to be a heavy-handed White House response to last month’s controversy resulting from a billboard that implied the president endorsed The Weatherproof Garmet Co. The company used an Associated Press photo of the president in one of the company’s jackets as the basis for a Times Square billboard. (The billboard came down a few days after it was launched; the company had intended it to have a two month lifespan.)

Maybe it’s a response to PETA (People for the Ethical Treatment of Animals) using an image of First Lady Michelle Obama in an “anti-fur” ad. This also happened in January, I might add.

Or maybe it’s a (belated) response to the furor (and lawsuit + criminal investigation) generated by an artist who violated copyright when he modified an AP image into a poster that became an icon for Obama’s presidential campaign.

Whatever the reason, the assertion of these “rights” seems to be in direct contrast to official government policy and is certainly in direct contrast to reasonable expectations by the public, given that the photos are being produced with taxpayer (ie, public) money. Ironically, the same Flickr page that claims (almost exclusive) copyright also links to the U.S. copyright policy statement.

And it’s in stark contrast White House actions in May 2009, when Wired reported that its Flickr photos had been made “public domain” images. The White House had been using a Creative Commons license, but many had noted that “government works can’t be copyright.”

Let’s compare the U.S. stated policy on copyright with the current claims made by the Obama White House.

First, from USA.gov:

A work that is a United States Government work, prepared by an officer or employee of the United States Government as part of that person’s official duties, is not subject to copyright in the United States and there are no U.S. copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work. Anyone may, without restriction under U.S. copyright laws, reproduce the work in copies in print or in digital form;

prepare derivative works of the work;

perform the work publicly;

display the work;

distribute copies or digitally transfer the work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Caveats Other persons may have rights either in the work itself or in how the work is used, such as publicity or privacy rights.

Not all work that appears on US Government Websites is considered to be a US Government work. Check with the content curator to see whether the work is a US Government Work. Works prepared for the United States Government by independent contractors may be protected by copyright, which may be owned by the independent contractor or by the United States Government..

Second, here’s the language being used on the White House Flickr account — even though the Flickr page links to the USA.gov site that says government photos are, effectively, public domain:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

The first thing I did was check to see if the photographer — Pete Souza — was freelancer or staff. It turns out that he is on leave from Ohio University and is both the official White House photographer and director of the White House photo office. It would be reasonable to assume that his office was instrumental in crafting the above language.

It would also be reasonable to assume that this policy was implemented after January’s dual embarrassments.

Here’s my question: does the White House have the authority to reverse the blanket “there is no copyright” policy of the federal government, simply because the President didn’t like his (non-White House owned) photo being used in what appears to be an endorsement? And is this the only recourse available to the White House to prevent unauthorized use of personal images?

I don’t know the answer to the first question (I’d like to think the answer is “no”) but there seems to be existing law that protects the Obamas from unauthorized use of images of their persons to imply an endorsement. As Politico reported in January, New York law protects individuals from unauthorized use of their image for advertising:

A couple of sources, including a New York lawyer who knows the state law on the issue well, say the company’s on quite thin legal ice, citing section 50 of New York Civil Rights law, which says that “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”

Perhaps the White House reminded The Weatherproof Garmet Co. of the particulars of New York law and succeeded in getting the billboard pulled without having to file a lawsuit. The PETA “endorsement” is not as black-and-white a violation, as Michelle Obama’s office has publicly confirmed (May 2009, June 2009) that she does not wear fur, which is what the PETA ad says.

To the White House, I suggest the following change in that (unenforceable, in my opinion) copyright claim:

A reminder that photographs may not be used in any manner that suggests approval or endorsement of the President, the First Family, or the White House, whether the endorsement is commercial or political in nature.

It’s a good reminder. You could almost call it a public service announcement. And it’s certainly less heavy-handed than the questionable language currently in use.

Photos copyright their respective owners and published here under fair use (education, commentary). Click image to be referred to original site.

This post first appeared at WiredPen