WASHINGTON, DC, February 2, 2013 — For nearly four years, the White House Flickr account has been blatantly spreading misinformation on appropriate use of official White House photographs.
The White House account on Flickr, the widely popular photo-sharing website owned by Yahoo!, has been active since sometime in March 2009. Each of the 4500+ photos contains within its caption the following faux legal disclaimer:
“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.” (Emphasis added.)
This scary disclaimer seems to have been created to keep the photo out of the hands of the public so that White House photography is restricted only to the domain of the press and individual(s) in the photographs. According to the disclaimer, the public is forbidden from manipulating (or photoshopping) the photo, even for satire and fair use purposes.
There’s just one problem: The disclaimer is blatantly false. The bolded portions above carry absolutely no legal weight.
Applicable Federal and Copyright Law disagrees.
Pursuant to federal law, government-produced materials appearing on www.whitehouse.gov and www.flickr.com are not copyright protected. By law, standard copyright laws do not apply to photographs taken by government employees as a function of their official duties. Flickr acknowledges that these pictures are “United States Government Work.” According to USA.gov:
“A United States government work is prepared by an officer or employee of the United States government as part of that person’s official duties. It is not subject to copyright in the United States and there are no 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 print or digital form;
- Create derivative works;
- 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.” (Emphasis added.)
Certain relevant exceptions exist, including the prohibition of the use of U.S. Government trademarks and logos without permission, and implication of any endorsement by the U.S. Government or one of its agencies.
In addition, certain subjects (individuals) in the photograph may have publicity or privacy rights that may not be violated. This generally only applies to commercial use. In addition, according to the Library of Congress website:
“Privacy and publicity rights are the subject of state laws. What may be permitted in one state may not be permitted in another.”
Most of the photos on the White House Flickr contain the “First Family” as subjects. They may not wish to cede their privacy and publicity rights to commercial use. What the First Family cannot do legally, however, is restrict the public from using government photographs because of their personal vanity.
Why is the White House making “legal disclaimers” that have little basis in reality? What grants the White House permission to restrict the public from its established legal rights to use government-produced and tax-payer-sponsored photographs?
John Paul Cassil studied Business Management (Entrepreneurship) and Political Science at Clemson University. A former U.S. House of Representatives Page, Cassil has since worked in Congress for Congresswoman Foxx, as a business consultant, and is currently employed by the U.S. Department of State. This article does not express the opinions of the U.S. Government or any of its agencies.
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