White House Claiming Quasi-Copyright Over Official Pics

It’s 100% legal for me to post this picture:

It’s an official US government document, so copyright does not apply–at least not in the US. (See 17 USC § 105.) It’s galling, then, that the official White House Flickr account has been adding language incorrectly claiming copyright-like restrictions on pictures.

The language reads:

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 only true part of the statement is that the photo may not be used to suggest commercial or political endorsement. The rest is balderdash.

You can print a thousand posters of this picture and sell them for profit. [Ed. Feb. 13: MAYBE. See below.] You can crop out Joe Biden’s face, insert your own, and use that for your Facebook profile picture. You can print a photobook using this and dozens of other official photos. It would be polite to credit photographer Pete Souza, but even that’s not required.

Just don’t do anything that implies endorsement of your product or political cause. (For instance, don’t sell your poster as an official White House poster.)

I’m sad to see yet another instance of the administration not delivering the government transparency we were promised. Willfully misrepresenting the law to constituents is bad form indeed.

Of course, it’s nothing compared to the fiasco that is the Anti-Counterfeiting Trade Agreement. The negotiations continue, with the goal of a signed treaty this year, but ACTA draft proposals remain “classified in the interest of national security pursuant to Executive Order 12598.”

It’s enough to make willful misrepresentation of the law look downright charming.

[Ed. Feb. 13: Here’s where “I’m not a lawyer” should just be auto-added to the top of all my posts. There’s no FEDERAL law that would keep you from reproducing and even selling government document photographs. There is, however, a state law issue of the “Right of Publicity.”

I think some applications of this right can be troublesome, but others make good sense. In any case, I failed to account for it in the first version of this post. Here’s a good post discussing the frequent uses of Obama’s image as a question of the right of publicity.

Short version: Politicians have a right of publicity according to state rights, though uses are more likely to raise First Amendment concerns, and enforcement is such a PR nightmare that it almost never happens. Which is why I was able to buy Obama handpuppets at the inauguration–and why you’d still be effectively able to sell your posters, but it may technically be illegal depending on your state’s law, and an attorney would likely discourage you from doing so.

But it’s still 100% legal to photoshop your face over Biden’s and use that as your Facebook profile. In fact, I have Photoshop…]