Wikilegal/Copyright Status Of Images Hosted On US Government Websites

Legal notes - Index +/-
Recent notes CC BY-SA licenses and social media Database Rights Turkish Wikipedia and Non-Free Content Copyright threshold of originality for logos Copyright of Medical Imaging The 9th Circuit and Works Published Without Formalities Copyright of Images of Memorials in the US Copyright of Images in German Postage Stamps Sweat of the Brow Copyright for Google Translations Copyright Status Of Images Hosted On U.S. Government Websites Linking: Some Legal Considerations

When determining the copyright status of images that come from U.S. government websites, there are a number of factors to consider. Simply because an image appears on a government website does not mean that the U.S. government created that image, and the distinction between images used by the U.S. government and those created by the U.S. government has implications for the copyright status of the images in question.

Background Information

In general, images created by U.S. government agencies are not covered by copyright because federal law removes copyright protection from works of the U.S. government. This restriction extends to any work “prepared by an officer or employee of the United States Government as part of that person's official duties.”

While works produced by the U.S. government are not entitled to copyright protection, one U.S. Court of Appeals has ruled that if the government contracts with a third party to create a work, and the work as commissioned is not related to official duties of any government employee, the work will enjoy copyright protection. In these cases, the third party would hold the copyright, but the contract commissioning the work might transfer the copyright to the U.S. government. Because of this, it is possible for works created by or in conjunction with third parties to enjoy copyright protection, but whether the work does, and who holds the copyright, will depend on the specific circumstances of the work. The government agency’s contract with the third party may even explicitly remove copyright protection, for example, so the particular circumstances of any given image will have to be investigated.

In addition, the removal of copyright protection from works of the U.S. government does not mean that the government cannot hold copyrights or the rights to use a copyrighted work. Practically, this means that an image hosted on a government website, if taken or created by a third party, may still be copyrighted, with the copyright simply transferred to the government. The government could also have licensed the rights to display and distribute the image from the original copyright holder.

Conversely, for works that do qualify as “works of the U.S. Government,” there is persuasive authority for the proposition that copyright cannot be claimed.

Unfortunately, these possibilities mean that there is no categorical way to determine the copyright status of images hosted on government websites. Each image will have to be analyzed to determine if the government created it, and if not, who holds the copyright. For images where the government holds the copyright or has a license, they could make the image available with or without restrictions, and determining if this is the case will require looking at the general policies of particular agencies as well as their statements about any given image.

Images Created in Whole By the U.S. Government: the NASA Example

To use NASA as an example, NASA's official policy clarifies that images created by NASA are not covered by copyright by stating that "NASA still images; audio files; video; and computer files used in the rendition of 3-dimensional models . . . generally are not copyrighted" and “NASA material may be reproduced and distributed without further permission from NASA."

Furthermore, images from specific NASA missions, projects, and collaborations (such as the New Horizons project) are also generally not subject to copyright protection. Such endeavors may have their own webpages for hosting images. And while these mission-specific webpages may have their own image policy statements, these statements usually include a provision indicating adherence to general NASA guidelines for image use and reproduction. Even if a particular mission or project-specific webpage does not include a provision indicating adherence to the general NASA guidelines, its own image use policy may allow unrestricted use of the images. However, even within NASA, exceptions to the general rule of ‘no copyright protection for government works’ do exist, and a thorough analysis of copyright rights requires a careful identification of the organization or individual that created the image (and, if the image is created by an organization that is vested with copyright rights, a careful look at the policies of that organization).

Agency Policy Statements and Conflict With Federal Law

It’s worth noting that, in its official policy statement, NASA grants specific authorization for some uses of its images, such as use for educational or informational purposes. These statements, however, do not appear to be limitations but rather helpful clarifications. It appears that NASA's guidelines are meant to make it clear that these uses are permissible; not meant to be construed as stating that the agency grants a license only for these enumerated uses.

In enacting 17 U.S.C. § 105, Congress’ intention was to prevent a government official or employee from being able to restrain anyone from disseminating government works; a form of safeguard against censorship. An agency’s attempt to claim copyright protection in circumvention of § 105 would be an usurpation, exceeding the agency’s delegation of authority from Congress. Therefore, it stands to reason that any such attempt would be struck down by the courts as a violation of federal law.

Images Created in Part By the U.S. Government

Unfortunately, when an image is created in conjunction with another party, the issue of copyright protection is not as clear-cut. There is no definitive rule for determining whether an image created in conjunction with a third party is subject to copyright protection. Each image will have to be evaluated on its own terms, keeping in mind the following concerns.

In the case of images created in conjunction with foreign government agencies, asserted copyright claims may be valid. Staying with the example of space exploration, both the European Space Agency (ESA) and the Japan Aerospace Exploration Agency (JAXA) assert copyright over the images they create and put on their websites, and they assert stricter use restrictions than NASA. Images from joint projects may have their own project-specific copyright status and terms of use. The copyright status of images from these joint projects is unclear, and, depending on the agreements that set up the project, the foreign space agency could hold copyright even if NASA does not.

Non-Copyright Restrictions on Use of Images Obtained From the U.S. Government

There are certain things to be mindful of when using images published by departments and agencies of the federal government. Most importantly, the material may not be used to imply the endorsement of the agency or of an agency employee for a commercial product, service, or activity. This restriction does not stem from copyright protection in the images, but from other legal doctrines (such as trademark law and right of publicity/privacy) that may apply.

Use of the logos of organs of the federal government is limited by specific U.S. statutes that protect the identities of particular agencies. For example, 14 C.F.R. § 1221.101(a) states that the NASA seal and logo "shall be used exclusively to represent NASA, its programs, projects, functions, activities, or elements."

Furthermore, images created in conjunction with third parties may have additional restrictions on their use. For example, the Jet Propulsion Laboratory (JPL) logo cannot be used to imply an endorsement by the JPL or Caltech of any product or service, but the JPL may allow such use in specific cases. As with the NASA restrictions, these requirements stem from trademark law and right of publicity/privacy rather than copyright protection.

Third-Party Images Hosted by the U.S. Government

Some federal agencies, like NASA, and their affiliates (for example, the JPL) make third party images available on their websites. If this material is copyrighted, the agency will may state in its policy (as NASA does) that they will note the presence of copyright protection. Permission from the copyright holder should be obtained prior to use of such material.

Notice of copyright, however, should not be conflated with attribution to parties that contributed to an image. Credit given to a contributing individual or institution may not necessarily mean that the attributed individual or institution also holds copyright rights in the image. This determination will have to be made on a case-by-case basis. However, and unfortunately, an agency’s stated policy (again, with NASA as an example) may be unclear on when copyright, rather than mere credit, is indicated.

The third-party owners of copyrighted works hosted by government agencies may make their material available under certain circumstances. For example, the JPL’s Image Use Policy states, “[s]ome image and video materials on JPL public web sites are owned by organizations other than JPL or NASA. These owners have agreed to make their images and video available for journalistic, educational and personal uses, but restrictions are placed on commercial uses. To obtain permission for commercial use, contact the copyright owner listed in each image caption.” For any given third party image, the image use policy of the site it appears on should be consulted for the relevant conditions, keeping in mind that any restriction on commercial use imposed by a third party would make the image ineligible for Wikimedia Commons.