Copyfraud at the White House?

Copyfraud at the White House!”  Sounds like a title the late Margaret Truman might have dreamed up, doesn’t it.  The story in brief: the White House yesterday posted nearly 300 official photographs taken during the first 100 days of the Obama Administration on Flickr, the popular photo-sharing site.  Applause, applause.  And the best part of all?  As all the stories note, in one form or another:

The photos have been made available to the public under a copyright license that allows users of the site to share and adapt the images so long as credit is given to the White House as the source of the original images.

The copyright license in question is CC-BY 2.0 Generic, one of the Creative Commons family of licenses, which (in this case) permits free copying, modification, and redistribution so long as the source of the original work is credited.

The Creative Commons licenses, however, apply only to copyrighted works.  White House photographer Pete Souza, though, is a federal employee whose works created within the scope of his employment aren’t subject to copyright at all.  Rather, they are in the public domain and may be freely used by anyone, with or without attribution to the White House.

Or are they?  Here’s where it gets fun (and by “fun,” of course, I mean “murky and maddeningly unclear”; after all, I’m a law professor).  The Copyright Act says that there’s no copyright in works created by federal employees.  But then there’s 44 U.S.C. § 2202, which gives the government “complete ownership, possession, and control of Presidential records,” including (under § 2201(1)) “photographs.”  So does that mean the White House owns Souza’s photographs after all?  I don’t know; although I once had some involvement with a different White House’s attempt to retain control over certain records of an employee, it didn’t touch upon this issue.  The point is merely that the Copyright Act may not be the end of the story here.

(According to Creative Commons, by the way, the reason the White House picked CC-BY 2.0 is that this was the freest alternative open to them on Flickr.  I assume that also explains why they didn’t pick a more current version of the license (like 2.5 or 3.0) or one of the variants tailored to U.S. law).

2 Responses to “Copyfraud at the White House?”

  1. I have to imagine that this is easily resolved by applying this section to mean merely the “ownership” and “possession” of particular, tangible copy of a record. This makes sense and would not lead to any conflict with section 105 because ownership rights in the physical object gives control and dominion over a “documentary record” to the whitehouse (and presumably the archivist), but would not foreclose making additional copies. (Section 2201(2)(b)(iv) excluding “extra copies”).

  2. There is a difference between “ownership” of something and “copyright” over something. Just because I own my car doesn’t mean I have any copyrights. Even if the White House “owns” Presidential records that does not mean they control distribution rights or have any copyright over the records. They are distinct and separate things.

    The bigger problem we have here is that because of the obsession people have with copyright and control, there is no option or “public domain” on Flickr. The license they chose was the least restrictive available when uploading to Flickr. However, I don’t think the White House could even enforce CC-BY 2.0 Generic as the photos are in the public domain and the White House has no distribution rights to enforce.