Remixing the President (or not)

Obama goes deep at Soldier Field in Chicago during the recent NATO summit.

While checking out the White House photo stream on Flickr recently I noticed some confusing inconsistencies in the licensing terms that illustrate (TK – FIX: competing institutional logics at work in copyright, remix, public relations within the state, and the public nature of government resources).

If you look at any photo uploaded by the White House account (such as the one of the President, above) , you can see that Flickr has enabled a special “United States Government Work” license. When you click through to read the license terms on USA.gov, here’s the text that shows up (emphasis added):

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.

Now, that’s all well and good, except that directly underneath every Flickr photo, the staffers who maintain the White House account have also include the following disclaimer (again, the emphasis is mine):

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.

At first I thought I must have misread one of the two texts. How could the innocuous looking disclaimer pasted beneath every uploaded photo contradict the licensing terms so directly? The seemingly ad-hoc notice on the Flickr page expressly prohibits any “manipulation” of the images, whereas the government works license text on USA.gov makes equally clear allowances for the creation of derivative works.

I may not be a lawyer, but it didn’t seem that such a glaring contradiction made sense – even within the twisted logic of U.S. Intellectual Property law.

A little bit of asking around on Berkman Center email lists led to two suggested interpretations (which I will probably mangle since I do not fully understand the legal nuances involved). The first was that the disclaimer text was attempting to assert a contractual claim to which I, or anyone who viewed or downloaded a photo from the White House Flickr stream, implicitly consented, independent of the particular copyright terms attached to government works.

The alternative argument was that the contradiction might have resulted from White House public relations staff attempting to assert control over the images without fully understanding the legal implications of their words.

No matter which version is more accurate (and they may both be partially true), the bottom line is that I’m not sure it’s a good idea to paste Brian Urlacher into the picture with President Obama (despite the fact that it would look pretty awesome).

Brian Urlacher in a Chicago photoshoot. Pavel Trebukov (cc-by-nc-sa)

I am curious to hear what other lawyers and non-lawyers think of this. Independent of what legal reasoning anybody finds convincing, I consider the fact that the White House releases these uncopyrightable photos in an online venue like Flickr to imply that the images are there to be downloaded, recontextualized, and remixed. As a result, I would prefer to see the White House remove the disclaimer that contradicts this intuitive interpretation that also happens to be consistent with the spirit of the government works license.

White House Office of Administration Immune from FOIA?

U.S. District Judge Colleen Kollar-Kotelly has ruled in agreement with Bush administration lawyers’ claim that the White House Office of Administration (WHOA) is immune from Freedom of Information Act (FOIA) requests.

Barring a successful appeal, this means that the Bush administration won’t need to hand over those conveniently lost emails that somehow managed to disappear from Bush, Rove, Cheney and Co.’s blackberries.

Apparently, Kollar-Kotelly accepted the argument that WHOA serves exclusively administrative functions and therefore is not subject to an act meant to protect political transparency.

The incredible irony is that WHOA has historically been the office in charge of handling all the FOIA requests submitted to the White House. As of right now, the WHOA website notes: ” The OA’s Regulations concerning FOIA are currently being updated.”

Count this one as a big fat loss for transparent government and a big fat win for the unitary executive theory. ugh.