President Obama Is Not Impressed With Your Right To Modify His Photos

from the copyfraud dept

Tue, Nov 20th 2012 12:18pm — Mike Masnick

You may have heard that, over the weekend, President Obama released a photo taken late last week with him and Olympic medal winning gymnast McKayla Maroney, doing the "not impressed" pose:

If you're not up on your memes, you can catch up on the "McKayla Maroney is not impressed meme" here and here. The photo of the President doing the meme-tastic pose generated a ton of buzz, with the apparent story being that during her visit to the White House, the President pulled her aside and said "I pretty much do that face at least once a day."

Cute. And, of course, nice to have a President not so out of touch that he's unaware of internet memes.

Except... as lawyer Venkat Balasubramani quickly noted, the restrictions on use are somewhat questionable. Beneath the photo on the Flickr account, it states:

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.

This is, of course, not a new thing. In fact, we reported on this exact phrase on the White House Flickr feeds three years ago. As we noted at the time, there had been some controversy when the White House first started using Flickr in the early days of the Obama administration, as any Federal US government created work is automatically public domain. Yet, Flickr did not have a "public domain" license option. In response, Flickr actually created a special license to indicate that the work was a US government work. That license explicitly states that "anyone may, without restriction under U.S. copyright laws... create derivative works."

And yet, the White House is ignoring what that license says in claiming that the photograph "may not be manipulated in any way." That's clearly untrue under the law and a form of copyfraud, in that they are overclaiming rights.

But, in this case, it's especially ridiculous, since the entire reason the "McKayla is not impressed" meme became so popular was the memegeneration of putting her displeased face into various other images.

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Filed Under: copyright, derivative works, mckayla maroney, memes, not impressed, president obama, public domain, white house

56 Comments

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Wally (profile), 20 Nov 2012 @ 12:24pm

It's the Streisand Cheezeburger Effect...when a meme gets treated like the Streisand Effect.
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Joshy, 20 Nov 2012 @ 12:26pm

I'm not impressed by this story.... such a non-story

I would hope the Presidents office has the ability to maintain his likeness for the use of promoting products etc....

Furthermore they shouldn't have to parse every photo and say..... this photo is acceptable in the use of promoting a meme.... but these here aren't
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Glen, 20 Nov 2012 @ 12:29pm

I thought that the White House was not impressed with our rights. They've let their lackeys whittle away at them at every turn.
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Anonymous Coward, 20 Nov 2012 @ 12:39pm

I know that look
Is that the look he makes when his drone strike only murders a few civillians and a suspected Muslim extremeist?
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Anonymous Coward, 20 Nov 2012 @ 12:40pm

He can always serve a DMCA request if he is the copyright holder lol
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Anonymous Coward, 20 Nov 2012 @ 12:42pm

I agree with Joshy, other than the fact of attempting to claim rights not theirs, this is pretty much a non-story. The kind that gets noticed but doesn't really say anything. You would think with running the country and as many problems as it has, there wouldn't be a lot of time for this sort of nonsense.
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Mitch Featherston, 20 Nov 2012 @ 12:42pm

CREATIVE COMMONS
I've always been concerned/confused by the White House's use of the Creative Commons Attribution license. Obviously, if the images are generated by a US Government employee, the work is 100% PUBLIC DOMAIN. If the images are created by some 3rd party, then maybe the licensing makes sense.

Maybe we need clarification?
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Suzanne Lainson (profile), 20 Nov 2012 @ 12:56pm

If we're going to cite IP cases here
Since Techdirt can be used as an equal opportunity publicity site, let's go with this one, too.

Google v Doogle: school dropout ready for legal battle with internet's Goliath | World news | The Guardian: "Google declined to answer questions about Doogle directly. Julie Taylor, a spokeswoman for the company in South Africa, said: "We can't comment on individual cases, but we are passionate about protecting the reputation of our brand as an objective and fair provider of search results. We simply ask our users not to shorten, abbreviate or create acronyms out of Google trademarks.'"
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Anonymous Coward, 20 Nov 2012 @ 12:59pm

"[A]ny Federal US government created work is automatically public domain."

To be accurate, a "work of the United States Government", which is excluded from copyright, is limited to works prepared by an officer or employee of the United States Government as part of that person�s official duties.

Moreover, while copyright protection is not available for any work of the United States Government, the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

It is thus important to ascertain the relationship of the photographer to the US Government and the circumstances under which the photograph was made. If copyright does pertain, it is possible that the limitation associated with the photograph is correct.
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Anonymous Coward, 20 Nov 2012 @ 1:07pm

Re:
He isn't the copyright holder though.
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Anonymous Coward, 20 Nov 2012 @ 1:08pm

Who is "he"?
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slander (profile), 20 Nov 2012 @ 1:12pm

Re: If we're going to cite IP cases here
Whiskey Tango Foxtrot?
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Anonymous Coward, 20 Nov 2012 @ 1:14pm

Leapt to a conclusion there, didn't we? I don't see any indication the photo was taken by a government employee.
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heyidiot (profile), 20 Nov 2012 @ 1:15pm

Apparently you DO....
...vote for Kings.
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Josh in CharlotteNC (profile), 20 Nov 2012 @ 1:22pm

Re:
Just speculation here, but it was most likely the official Whitehouse photographer - who is employeed by the government, and his official duties involve taking exactly these types of pictures.
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VMax, 20 Nov 2012 @ 1:31pm

Re: Re:
The Flikr page says (Official White House Photo by Pete Souza). Pete Souza's bio from his web page starts with "Pete Souza is the Chief Official White House Photographer for President Obama; he is also the Director of the White House photo office."
I'm pretty sure that clears it up.
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Leigh Beadon (profile), 20 Nov 2012 @ 1:36pm

Re: Re:
Yup. The photographer is listed, it's Pete Souza -- "the current Chief Official White House photographer for President Barack Obama and Director of the White House Photography Office"
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Leigh Beadon (profile), 20 Nov 2012 @ 1:36pm

Re: Re: Re:
ah, beat me to it :)
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weneedhelp (profile), 20 Nov 2012 @ 1:44pm

Thought bubble
Damn I would soooo hit that.
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Anonymous Coward, 20 Nov 2012 @ 1:48pm

Re: Re: Re:
It would seem so, but I can find no listing for a White House Photography Office, so its status is not clear to me.

BTW, I did not originally comment to be critical of the article here, but only to point out that not everything emanating from the USG is necessarily within the public domain. For example, it is doubtful that the "works" of elected officials are governed by Section 105 of the Copyright Act because they are neither officers nor employees of the US Government. I can think of many names with which I associate elected officials, many not at all complimentary, but officers and employees are not among them.
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New Mexico Mark, 20 Nov 2012 @ 2:09pm

I told you so...
...the President pulled her aside and said "I pretty much do that face at least once a day

And they say this president doesn't care about the U.S. Constitution. Here is proof that he looks at it at least once a day.
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Lowestofthekeys (profile), 20 Nov 2012 @ 2:14pm

This is why I love photoshop

http://cheezburger.com/6792392192
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MahaliaShere (profile), 20 Nov 2012 @ 2:17pm

Somebody should explain to them that looking like they're about to bust out laughing kind of ruins the effect. But still, well played. It's still funny.
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Suzanne Lainson (profile), 20 Nov 2012 @ 2:17pm

Re: Re: If we're going to cite IP cases here
Just wanted to make sure that people know "anti-copyright" corporations will also sue over IP issues when it suits their purposes.

I'm more suspicious of corporation motivations than I am government motivations, so I will periodically point out that big corporations aren't necessarily looking out for our interests either.
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Joshy, 20 Nov 2012 @ 2:18pm

Following the links the story is even less of a story. Contrary to the Techdirt take the photo can be manipulated.

[i]The White House has recently unveiled its Official White House Photostream on Flickr, posting dozens of stunning photos by official photographer Pete Souza. In posting the photos, the White House chose the least restrictive license available, a Creative Commons Attribution license � which means the public is free to download, copy, and re-mix freely, so long as the original photographer is credited. [/i]

Is Techdirt against the photographer being acknowledged if a photo is used. Isn't this one of the few if any examples of a photo that would be manipulated. Is it now worthy of vilifying them for wanting the Photographers name listed whenever republished.... and they failed to waive that request once on a photo that unlike other photos will most likely be heavily remixed???
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ldne, 20 Nov 2012 @ 2:39pm

Re:
Published photo's of the President, any US President, are public domain images that anyone can use. They can't restrict the use in the way their "license" states, so it's disturbing that they would even try.
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ldne, 20 Nov 2012 @ 2:44pm

Re:
Did you not actually A) READ THE ARTICLE where this is shown as being under the photo on Flikr:

"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. "

Which is NOT Creative Commmons, despite whatever box they may have checked, and

B) Understand that all photos of a sitting US President are PUBLIC DOMAIN and they cannot restrict usage by the public.
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slander (profile), 20 Nov 2012 @ 2:46pm

Re: Re: Re: If we're going to cite IP cases here
Actually, my reaction was regarding the relevance to the subject at hand. Would it not be more appropriate to submit this as a separate story?
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Josh in CharlotteNC (profile), 20 Nov 2012 @ 2:46pm

Re:
Think you're misunderstanding. Techdirt isn't saying that the photo can't be manipulated - the notice at the bottom of the picture on Flickr, put there by a government employee who set the account up, is claiming it cannot be manipulated.

The story is that the claim, stated by a government employee, is wrong and falls into the copyfraud part of copyright law - claiming rights you do not have.

Since the work was created by a government employee as part of their official duties, it is automatically a public domain image, and no one, not even the government or the photographer can make any claim over it.

Techdirt is not villifying anyone for wanting the photographer credited - TD is saying that claiming such a right on a public domain work is incorrect.
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Anonymous Coward, 20 Nov 2012 @ 2:49pm

Re:
"Following the links the story is even less of a story. Contrary to the Techdirt take the photo can be manipulated."

You're just wrong. Did you go to the VERY FIRST link?

http://www.flickr.com/photos/whitehouse/8191317327/in/photostream

It very clearly says "The photograph may not be manipulated in any way" among other things. They do not have the right to prevent people from manipulating the photo. When they say "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" they might be on firmer ground, but that would hold true whether or not they said so on the photograph.
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Anonymous Coward, 20 Nov 2012 @ 2:57pm

Also, just to be clear, please read the actual rules for US Government works (as opposed to what they claim for this photo,) provided for us by the actual US Government:

http://www.usa.gov/copyright.shtml

"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."
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Wally (profile), 20 Nov 2012 @ 3:15pm

Re: Re:
" When they say "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" they might be on firmer ground, but that would hold true whether or not they said so on the photograph.

Memes do not follow any of those catagories. Making a meme of this photograph is not a political statement, it's political satire, which is clearly missing from the statement.
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Josh in CharlotteNC (profile), 20 Nov 2012 @ 3:19pm

Re: Re:
they might be on firmer ground,

Not if the image is public domain. If it is public domain, then anyone, anywhere, can use it for anything they damn well please without fear of the government or the photographer being able to stop them on copyright grounds.
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Suzanne Lainson (profile), 20 Nov 2012 @ 3:34pm

Re: Re: Re: Re: If we're going to cite IP cases here
Would it not be more appropriate to submit this as a separate story?

Yes, and if Techdirt were a bulletin board, group, or Facebook page that's exactly what I would have done. But I'm not sure how to post stuff that isn't exactly tied to specific Techdirt topics.

As we dig deeper into politics and copyright, I'm always going to lean toward an anti-corporate position. As for politics, if I could get corporate money out of campaign funding and lobbying, I would.

I don't embrace the concept that private business = good, government = bad. As I have pointed out before, I like the P2P Foundation approach to the world. It is very pro-commons, but commons are often governed by groups of people, so it does involve government in a broad definition of the word. It isn't an Ayn Rand type view of the world.
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Anonymous Coward, 20 Nov 2012 @ 3:57pm

Re:
You're not impressed, because you do not understand. This is another, albeit innocuous example of how the government often doesn't even understand its own laws.
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Anonymous Coward, 20 Nov 2012 @ 5:26pm

Re: Re: Re:
"If it is public domain, then anyone, anywhere, can use it for anything they damn well please without fear of the government or the photographer being able to stop them on copyright grounds."

On copyright grounds, yes. But if they used it to actually say the President ENDORSED something (and I'm not talking about a meme screenshot) that would violate the President's rights which have nothing to do with copyright. Like, Wheaties can't just put the picture on their cereal boxes.
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Franklin G Ryzzo (profile), 20 Nov 2012 @ 5:28pm

Re: Re: Re: Re: Re: If we're going to cite IP cases here
If you click on your username you'll see an option to submit a story, and if the powers that be find it fits they'll publish it or write something based on the suggestion. Posting links to unrelated stories will only get your posts flagged as spam when they don't contribute to the discussion.

Here's the direct link in case you can't find it: https://www.techdirt.com/submitstory.php
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Franklin G Ryzzo (profile), 20 Nov 2012 @ 5:30pm

Re:
Awesome! Zombie is not impressed!
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Shadow Dragon (profile), 20 Nov 2012 @ 5:40pm

Re:
Or GIMP
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Suzanne Lainson (profile), 20 Nov 2012 @ 5:42pm

Re: Re: Re: Re: Re: Re: If we're going to cite IP cases here
The story has turned up in some of my newsfeeds, so I am curious whether anyone else has already submitted it to Techdirt. Has anyone?
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G Thompson (profile), 20 Nov 2012 @ 6:42pm

Re:
By the very nature of you commenting about this "story" and stating that it is a "non story" but still analysing and giving your input into it all is to put it mildly bloody hilarious.

Did you mean to be Ironic (Socratic even) or it's really total ignorance ?
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Anonymous Coward, 21 Nov 2012 @ 1:24am

Re: Re: Re: Re:
Aren't they officers?
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Wally (profile), 21 Nov 2012 @ 4:56am

Re: Re: Re: Re:
You are absolutely right. In fact I think it's a bilaw in the First Amendment To the US constitution that disallows people from taking your photograph for endorsements or advertising without your permission.
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Marcel de Jong (profile), 21 Nov 2012 @ 7:10am

Re: Re: Re: If we're going to cite IP cases here
Since when is Google an "anti-copyright" corporation?
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Anonymous Coward, 21 Nov 2012 @ 8:56am

Merely as an aside, I am informed that Yahoo/Flickr is looking into this to verify that it is properly classifying photos as works of the USG. As noted above, just because a photo comes from the USG does not automatically mean that it is within the public domain and free from any copyright claim.
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Anonymous Coward, 21 Nov 2012 @ 9:10am

Re: Re: Re: Re: If we're going to cite IP cases here
There seems to be a vocal minority who believe that it is Google's job to police the internet. The fact that there is infringing content on the internet, and that you can find it (like everything else) through Google, is taken as proof that Google is somehow anti-IP.
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Suzanne Lainson (profile), 21 Nov 2012 @ 11:44am

Re: Re: Re: Re: If we're going to cite IP cases here
Since when is Google an "anti-copyright" corporation?

Is Google in the pro-copyright group? I didn't realize that.

While the company does try to stay safely within the law, it has been my impression that Google has funded, in various ways, vocal opponents to IP protection.

So is Google pro-copyright, anti-copyright (and anti-IP in general), or something in-between? Or maybe it's taking all sides of the issue as a political tactic?
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Anonymous Coward, 21 Nov 2012 @ 4:36pm

I still haven't seen any nude fakes of Michelle.
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nasch (profile), 23 Nov 2012 @ 11:10am

Re: Re:
Published photo's of the President, any US President, are public domain images that anyone can use.

That's not correct. Photos produced by the government are public domain. Photos of the president taken by someone else are automatically copyrighted by the photographer.
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nasch (profile), 23 Nov 2012 @ 11:14am

Re: Re: Re: If we're going to cite IP cases here
What does anti-copyright (if they are) have to do with pro-trademark?
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Suzanne Lainson (profile), 23 Nov 2012 @ 11:35am

Re: Re: Re: Re: If we're going to cite IP cases here
What does anti-copyright (if they are) have to do with pro-trademark?

True, a company can be anti-copyright and yet pro-trademark, but I have seen Techdirt take to task companies that legally try to protect their trademarks, so I have assumed that it's a subject that finds some disapproval within anti-IP circles.

I'm skeptical of Google's IP purity in that I think the company would like to do away with copyrights because doing so would allow it to post content without hassles, while doing away with trademarks wouldn't have any benefit for Google.

I'll support doing away with various IP laws, but I am interested in it within the context of reducing the power of big business in general. Replacing Big Hollywood with Big Tech isn't my goal.
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nasch (profile), 23 Nov 2012 @ 4:31pm

Re: Re: Re: Re: Re: If we're going to cite IP cases here
True, a company can be anti-copyright and yet pro-trademark, but I have seen Techdirt take to task companies that legally try to protect their trademarks, so I have assumed that it's a subject that finds some disapproval within anti-IP circles.

It's trademark bullying that gets disapproval. The examples of companies appropriately protecting their trademarks I would think just aren't very interesting, so we don't hear about them much.
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Suzanne Lainson (profile), 23 Nov 2012 @ 6:58pm

Re: Re: Re: Re: Re: Re: If we're going to cite IP cases here
The example I cited about Google would probably fall into trademark bullying. It's unlikely there would be much confusion between Doogle and Google.
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Anonymous Coward, 24 Nov 2012 @ 5:24am

Do as we say not as we do. - Fascists of America
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tracyanne, 13 Oct 2015 @ 8:32pm

McKayla Maroney Who?
Until this article I had never heard of McKayla Maroney, nor the Internet meme 'McKayla Maroney is not impressed.'

I must have a life.
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tracyanne, 14 Oct 2015 @ 12:22am

Re: Re:
Indeed, and you don't even need to 'pirate' it.
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