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Can the White House Really Say That Its Flickr Photos Can't Be Tweaked?

BY Nancy Scola | Thursday, May 12 2011

White House photo by Pete Souza, as altered by...well, who knows. It was on the Internet.

Here's a quick follow-up on the legal angle of that situation where a Brooklyn Hasidic paper apologized for erasing Hillary Clinton and another woman from that iconic White House Situation Room photo -- but only because doing so violated a ban on alterations that the Obama White House inserted into the Flickr caption on the photo. The U.S. Government Work designation that the White House photo was released under is generally interpreted to mean that this sort of thing is in the public domain. So, the question becomes, is there any real weight to the White House's "may not be manipulated in any way" order just because they put it in a Flickr caption? I consulted Electronic Frontier Foundation general counsel and legal director Cindy Cohn. Here's her take:

The public domain means public domain: the photo belongs to the public and the public can do what it wants with it. That photo has been altered and used in a bunch of ways online, some of them pretty funny. I would be curious to know if the White House has been complaining to those folks too. While I agree that the altering done by the newspaper, erasing the women, is personally offensive to me and could be misleading, it makes me even more nervous to have government officials believing that they are in the position of deciding which alterations to public domain materials are OK for the public to see and which are not.  

Of course, in this case, the White House didn't articulate any objection to what Der Tzeitung did to its photo. Der Tzeitzung belatedly objected to what Der Tzeitung did to the White House's photo. But the White House's no-alterations order did give the paper something to work with when it came time to issue an apology. More than anything, the incident points to the fact that there are still unsettled zones when it comes to how we make use of digital content in the civic space -- though in the U.S. things are still considerably more liberal on that front than, say, in the U.K.

As Cohn points out, there's been an online explosion of altered versions of that Sit Room photo, and no one has complained about them. She highlights as a particularly favorite the one above where sitting in on the U.S. national security session is the angry-looking tiny bridesmaid from the royal wedding.