Remixing the President (or not)

June 4, 2012

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, 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 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.

5 Responses to “Remixing the President (or not)”

  1. […] Aaron Shaw has a very interesting post on what sure looks like contradictory instructions from the White House about whether we’re free to remix photos that have been released under a maximally permissive U.S. Government license. Aaron checked in with a Berkman mailing list where two theories are floated: It’s due to a PR reflex, or it’s an attempt to impose a contractual limitation on the work. There have been lots of other attempts to impose such limitations on reuse, so that “august” works don’t end up being repurposed by hate groups and pornographers; I don’t know if such limitations have any legal bite. […]

  2. I discovered this in 2010 and posted a comment under many of the photos pointing out that the more restrictive claim is pure BS—which it is. The only possible legal hook they could hang a hat on here is publicity rights. One cannot use images of the president to imply endorsement. (Fair enough; that’s a far cry from what they say.) I posted enough comments to (a) rile up many other Obama supporters (among which I count myself), and (b) to get a Flickr message back from the photographer. Here’s what he said, in its entirety:

    :: FYI

    I appreciate your comments on our Flickr photostream. I
    know you’re bothered by our language accompanying the
    photographs. All I can say is that official White House
    photos of the President are in a different ball game than
    other government works. You’re right that there is no
    copyright on these images. But there very much are strict
    legal limits about using the image of the President in
    certain ways. I am not an attorney so I don’t know all the
    ins and outs. But this language was developed by the White
    House counsel’s office to mirror the “likeness” policy of
    using the President’s image that has been in effect for
    many, many administrations. Hope this helps.
    Pete Souza

    They now no longer allow comments, as I’m sure you’ve noticed. Souza’s account would not even accept a reply from me, EVEN THOUGH he messaged me first. So much for transparency and accountability.

    FWIW, as another non-lawyer (but somebody who teaches a whole class in copyright), I feel free to go ahead and do whatever I want (except imply presidential endorsement) with any of these pics. One of my FB profile pics is me photoshopped in Biden’s place so that it looks like I’m walking with my arm around Obama.

    • aaron Says:

      @Bill – thanks for recapitulating your experience here – the response from the photographer is particularly fascinating! In my mind, your experience (and Souza’s response) further underscore the extent to which these public relations policies “that have been in effect for many, many administrations” exist in tension with the act of posting White House content to social media sites. It’s all a good reminder that a big reason why anyone in the White House posts to social media is precisely to cultivate the impression of transparency to which you refer. Not surprisingly, the differences between this sort of impression management and the exigencies of maintaining the President’s public image can come into conflict.

  3. Firstly, one cannot surrender liberty in a contract – notwithstanding the apparently ability these days for contracts/licenses to mug passersby into ‘involuntary agreements’ (oxymoron).

    Secondly, the ‘disclaimer’ is a poorly worded reminder of moral rights, that it is dishonest to modify a work and present it as the original (even implicitly), or to misrepresent someone (even implicitly).

    Unlike copyright (a privilege) moral rights are not held, nor are they powers of control to be wielded by a holder as they see fit.

    The root of the problem is that people are no longer educated as to what rights truly are (natural) – vs what the state now prefers them to be thought of (granted by the paternalist state).

    See The Copyright Clause That Never Was.

    • aaron Says:

      I can’t speak to the legal aspects of your points here, Crosbie, but I share the sense that I have been occasionally mugged by a contract while going about my daily life. It would be entertaining to estimate of how many contracts Americans in various socio-economic strata enter into on a daily basis.

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