Has a Presidential Candidate Violated a Copyright?

Please note that this post is not about politics, it’s about legal issues surrounding a political ad.

The Huffington Post has a story about Texas Governor Rick Perry’s latest campaign ad, a web-only attack on Mitt Romney. At issue is whether the usage of a White House-provided image violates the terms under which it was released.

In the ad, an image of then President-Elect Obama appears, shot just before his inauguration. The image was released via the White House’s Flickr feed with the following text below it:

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 would indicate that the usage in the Perry campaign ad would be off limits. But … I’m not sure that the White House can restrict the usage of the image. Since it was shot by a government employee (Pete Souza), it would go into the public domain.

Legally, this is a pretty good thriller – can public domain images be used in campaign ads? Would barring them be a First Amendment violation? Can the highest elected official in the government limit how his likeness is used? Since it was before his inauguration, was he a public figure? A government official? Was Souza on the public payroll when the image was made?

Will this be coming soon to a federal court near you?

(Thanks to student Maura Friedman for the link.)

Mark E. Johnson

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