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Are All Works by the U.S. Federal Government in the Public Domain, and If So, Why Would a Documentary Maker Pay an Archive for Them?

12:46 am | Uncategorized

This Q&A was originally published in the Summer 2019 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.

Most but not all images, clips, text, and other works created by the U.S. federal government are in the public domain.  Section 105 of the U.S. Copyright Act provides that copyright protection does not apply to “any work of the United States Government” and Section 101 elaborates that “A ‘work of the United States government’ is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.”

Public domain status applies for example to photographs, films and other works created by certain agencies and branches of the federal government including NASA, the Department of Defense, Congress, and the armed services, as well as many other parts of the government.  There are some traps, however.

For one, according to Section 105, the U.S. government “is not precluded from receiving and holding copyrights transferred to it by assignment, bequest or otherwise.”  If the Library of Congress, for example, receives a collection of stills or films from a photographer or documentary maker, the collection still may be protected by copyright.  And sometimes the government commissions a third party to create a work, such as a piece of public art, who assigns it back to the government, thereby permitting the government to assert copyright protection.  This was illustrated in a case brought by an artist against the U.S. Postal Service for using on a stamp an image of the statues he created of soldiers comprising the Korean War Veterans Memorial.  Congress enacted legislation to erect the memorial but a subcontractor commissioned the statues and the artist retained the copyright.  The artist won.

Speaking of stamps, artwork and design on stamps are typically protected by copyright and not in the public domain, even if created by the U.S. Postal Service.  Logos and insignias of the federal government might be subject to trademark-like protection even if not protection by copyright, although that would seldom prevent a documentary maker from including a logo or insignia in a film.  And the exclusion of copyright protection does not apply necessarily to use of U.S. government-created works outside the U.S.

Even public domain images created by the federal government, however, may still command a price for access. An archive, like Getty Images, is entitled to charge for images that are provided through its services even if they are unprotected by copyright, but of course, it cannot prevent unlicensed third parties from using the same material.  In a pending class action lawsuit brought in the state of Washington by a digital media marketing company, Getty stands accused of fraudulently claiming ownership of public domain images (such as NASA images), guaranteeing exclusivity, and accusing users of public domain images of copyright infringement.  (As of this writing, Getty has not yet responded.)

What about state, local and foreign governments?  Unlike the U.S. federal government, no rule prevents them from owning copyrights, and most of them do.

This is not to rule out fair use in appropriate circumstances.  The point is that at least for many U.S. government creations, fair use and the restrictive criteria for its application are not relevant because there is no copyright protection to begin with.

–Neil Rosini

© 2016 Steven Beer