“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).