US government works: everything isn’t copyright free

Where were we? Ah yes, US government works. The US government is one of the largest publishers in the world and, by law, works prepared by federal government officers or employees as part of their official duties are not copyrightable. That means thousands upon thousands of works, of all kinds — written works, photographs and other images, films, software, and more — are in the US public domain.

There’s so much great material it’s mind boggling. For example, government documents supplied by Former Treasury Secretary Paul O’Neill to Pulitzer Prize winning journalist and author Ron Suskind enabled him to write this. You could use the same documents to create ... well, that’s up to you isn’t it?

But not all US government works are in the public domain. Here’s a brief overview of what you should be careful of.

US government agencies may claim copyright abroad

While US government works generally are in the public domain in the US, they may be protected by copyright abroad. The feds may claim copyright protection for US government works in other countries depending on how those countries treat their own government works. So just be aware that US government agencies sometimes claim copyright in their works outside the US.

The US may hold copyrights that are transferred to it

The US government may hold copyrights that are transferred to it. As stated in 17 USC § 105:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

So if a US government agency hires an independent contractor to produce a work for it, and the contractor assigns his or her copyright in the work to that agency ... the work won’t have been produced by an official or employee of the government, so the copyright exclusion won’t apply. The government, instead of the contractor, will be the copyright owner.

An example

Let’s say a US government agency hires a web designer to create and maintain its site. Since the web designer is an independent contractor, she will own the copyright in her work unless she assigns it to the government (which is likely).

If she doesn’t assign her copyright, she owns the copyright in all parts of her design that qualify for copyright protection. If she does assign her copyright, the US government owns it. But either way ... even if there are US government works (which are not copyrightable) on the site, the site design itself (the code, the graphics, etc.) are not in the public domain.

Standard reference data may be copyrighted

Here’s another exception to the general rule that US government works are in the public domain. The government may claim copyright in any standard reference data that the Secretary of Commerce prepares or makes available under the Standard Reference Data Act (15 USC § 290e).

What the heck is standard reference data? It’s technical data having to do with chemistry, physics, biotechnology, industrial fluids and chemical engineering, materials properties, and so on. The purpose of the standard reference data program is to make evaluated scientific and technical data readily available to scientists and engineers for use in technical problem solving, research, and development.

Copyright claims registered under the Standard Reference Data Act should include a notice that reads: “Claim registered under the Standard Reference Data Act, P.L. 90-396 (15 USC 290e).” Or you might see something like this: “© 2006 Copyright US Secretary of Commerce on behalf of the United States of America.” At any rate, there should be a notice.

Be careful with official seals, emblems ... and Smokey Bear

US government works sometimes incorporate names, titles, slogans, symbols, or seals whose use is subject to restrictions by other laws. Although these restrictions have nothing to do with copyright, the end result is that materials are not in the public domain. Some examples of restricted names and characters are Olympic, Olympiad (36 USC § 220506); Woodsy Owl and the slogan “Give a Hoot, Don’t Pollute” (18 USC § 711a); and Smokey Bear (18 USC § 711).

You’ll find that many public domain US government works have restrictions similar to this one, from NASA:

NASA material may not be used to state or imply the endorsement by NASA or by any NASA employee of a commercial product, service, or activity, or used in any manner that might mislead.

That doesn’t mean you can’t use the material, even commercially. It just means you can’t mislead people into thinking that the agency is in any way connected with your use.

And don’t even think about using US government seals or other insignia without permission. (That should be common sense, though, right?) Here’s another statement from NASA:

NASA still images, audio files and video generally are not copyrighted. You may use NASA imagery, video and audio material for educational or informational purposes, including photo collections, textbooks, public exhibits and Internet Web pages. This general permission extends to personal Web pages. . . . This general permission does not extend to use of the NASA insignia logo (the blue "meatball" insignia), the retired NASA logotype (the red "worm" logo) and the NASA seal. These images may not be used by persons who are not NASA employees or on products (including Web pages) that are not NASA sponsored. (emphasis mine)

That’s pretty clear, yes? (Although ... if material isn’t copyrighted, you should be able to use it any way you wish — so what’s with the “for educational and informational purposes” bit?) The bottom line here: don’t imply endorsement or sponsorship.

Watch out for quasi-governmental organizations

Here’s where lots of people get confused ... because these organizations look like federal agencies but they’re not:

The Smithsonian Institution.
I’ve seen the Smithsonian’s web site listed as a public domain resource, but it is not. The Smithsonian, which was created by Congress in 1846 (see 20 USC § 41), is something called an “independent trust instrumentality.” What does that mean for you? The Smithsonian claims copyright in its works. A quick look at its web site lets you that you may use the content for personal, educational, or noncommercial purposes (with an appropriate citation), but all other uses are prohibited. (See the terms and conditions here.)

Text and image files, audio and video clips, and other content on this website is the property of the Smithsonian Institution and may be protected by copyright and other restrictions as well. . . . Smithsonian expressly prohibits the copying of any protected materials on this website, except for the purposes of fair use as defined in the copyright law . . . .
The National Gallery of Art.
The National Gallery of Art is another institution people often think is part of the federal government. It was established by Congress in 1937 and, although the US government supports the museum’s maintenance (see 20 USC § 74), it’s entitled to claim copyright in its works. And it does.

The National Gallery of Art’s web site home page greets visitors with:

The contents of this site, including all images and text, are for personal, educational, non-commercial use only. The contents of this site may not be reproduced in any form without the permission of the National Gallery of Art.
The Corporation for Public Broadcasting.
The Corporation for Public Broadcasting (CPB) isn’t a federal government agency, either. It’s a private nonprofit corporation that was created by Congress in 1967 (see 47 USC § 396). CPB-funded television programs are distributed through the Public Broadcasting Service (PBS) and radio programs through National Public Radio (NPR). The content of both is copyrighted, as NPR’s web site tells you:

All NPR content (audio, text, photographs, graphics) is protected by copyright in the U.S. and other countries. . . . NPR content may be printed for your own personal, non-commercial use. In the event of such use, all copyright and other notices and clear attribution to NPR must be maintained. The content may not be modified, distributed, retransmitted, or used, in whole or in part, in derivative works. All other uses, including reprinting, republishing, broadcast and any further distribution, require written permission from NPR.

PBS has a similar blurb, as you might guess. Personal, noncommercial use is okay ... but don’t you go thinking that any of the content is in the public domain.
The US Postal Service.
The US Post Office Department used to be a federal agency (part of the cabinet, actually) but that changed in 1970, with passage of the Postal Reorganization Act (see 39 USC § 201). That Act abolished the US Post Office Department and created the United States Postal Service, a corporation-like independent agency with an official monopoly on the mail delivery of mail in the US. And ... you guessed it ... the Postal Service can copyright its works. And it does.

The color of money ... and stamps

What about money and postage stamps? They’re created by the US government, so are they in the public domain? Let’s take a look.

US paper currency

According to the Counterfeit Detection Act of 1992 (see 31 CFR 411) you can make color reproductions of US paper currency as long as:

the reproduction is reduced to less than 75% or enlarged to more than 150% of the currency’s original size;
the reproduction is one-sided; and
all negatives, plates, positives, graphic files, digitized storage medium, magnetic medium, optical storage devices, and any other thing used to make the reprodcution that contain an image of the currency (or any part of it) are destroyed and/or deleted or erased after their final use.

18 USC § 504 permits black and white reproductions of currency, as long as the reproductions meet the size requirements above (less than 75% or more than 150%).

US coins

Coins are less of a counterfeiting problem than paper money. Feel free to photograph, film, draw, paint, make slides of, etc., US coins. Those reproductions may be used for any purpose. Just don’t make, sell, or use any token, disk, or device resembling any coins that the US issues as money.

US postage stamps

The art on US postage stamps used to be in the public domain, but since 1970 (when the Post Office Department was privatized) the US Postal Service has been able to claim copyright in stamp designs. It didn’t start doing that until 1978, though. So what about pre-1978 stamp designs, then? Can you copy them freely? Yes, as long as you obey anticounterfeiting laws. (You don’t want the Secret Service after you, do you?)

Black and white reproductions of uncanceled US postage stamps are permissible in any size. Color reproductions of uncanceled US postage stamps must be less than 75% smaller or more than 150% larger than the size of the original stamp. Canceled US postage stamps may be of any size, whether the reproduction is in color or black and white. (See 18 USC § 504.)

Note: Canceled US postage stamps must bear an official cancellation mark (that is, the stamps must have been used for postage).

And if you republish a US government work ...

Let’s say you decide to create a work of your own incorporating portions of The 9/11 Commission Report, a US government work that’s in the public domain. Can you claim copyright in your work? Yes ... but you should identify which parts of the work are US government works and which parts are protected by copyright. So, depending on what you contributed to the work, your copyright notice might read something like this:

Introduction and compilation copyright © 2006 by Brenda Starr. No protection is claimed in original US government works.

Here’s a real world example. A private legal publisher includes this statement on digital copies of the cases it publishes:

© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Why bother to do this? Because you want to let people know which parts of the work they’re free to use (hey, you used it, didn’t you?) and you also want to stop anyone you might sue for infringement from arguing they had no notice your work was copyrighted. (See 17 USC § 403.)

Now let’s move on to works that went straight into the public domain when they were published ...