Dan Whalen is a JD candidate at Osgoode Hall Law School.
Despite public calls driven by morbid curiosity and a yen for closure, the White House has decided not to release the post-mortem photos of Osama bin Laden. According to US Secretary of Defence Robert Gates, the decision was motivated in part by concern that the images would be digitally altered and used in a way that could inflame terrorist reactions and thereby put innocent lives at risk.
Although reasonable even at face value, this argument is further supported by the state of US law on copyright of government works. Gates admits that his fears about releasing the bin Laden photos were stoked by the recent photoshopping flap caused by conservative Yiddish newspaper Der Tzeitung. The paper published the now-iconic photograph of President Obama and his national security team in the White House’s Situation Room monitoring a live video feed of the operation in which Navy SEALs ultimately killed bin Laden. In the photo, Secretary of State Hillary Clinton and another female staffer have been digitally taken out, leaving only empty spaces behind.
Beyond the bounds of print media, photoshopping is a widespread Internet trope that provides regular entertainment for many. Famous photographs and scenes have been customary targets, such as cameos through history of French President Nicolas Sarkozy and various takes on the moon landing. Naturally, the US government is concerned about such efforts being directed at the bin Laden photos – partly due to the sensitivity surrounding the ongoing War On Terror, but perhaps also because of the relatively weak legal protection of such photos.
According to the US government’s official website, government works are “not subject to copyright in the United States and [thus] there are no copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work.” Accordingly, “[a]nyone may, without restriction under U.S. copyright laws... create derivative works.” This broad permission is accompanied by a few narrow exceptions but otherwise seems to leave untouched the public’s right to manipulation for parody or political purposes.
Contrast this policy with the disclaimer accompanying each photograph of the White House’s official photostream on the popular image-hosting website Flickr: “[These photographs] 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.”
The latter half of this statement echoes one of the aforementioned exceptions of the USA.gov page: “[One] cannot use a U.S. government work in a way that implies endorsement by a U.S. government agency, official, or employee.” Yet the statement’s separate restriction – that the photographs “may not be manipulated in any way” – exists without counterpart and independently asserts what seems to encroach on copyright protection.
Perhaps capitalizing on the turbid legal waters surrounding such photos and despite these warnings, there is an ongoing history of the very commercial manipulations warned against. Recent examples include President Obama’s apparent endorsement of a winter coat and the first lady’s unwitting conscription by PETA for an anti-fur ad. Each incident was met with disapproval from the White House – but neither by legal action.
Given the government’s seeming inability to enforce its clear instructions regarding commercial manipulations against such brazen violations, its luck seems even more hard-pressed in discouraging the intrinsically more diffuse efforts at parody – which also seem to be implicitly allowed by the government’s official policy. One can easily imagine that, even if the government could copyright its works, it still would not provide much protection of images gone viral. On the seemingly lawless playground that is the Internet, national boundaries and legal jurisdictions are confusing, most of all to users who might do the photoshopping. Whether the White House followed this chain of thinking through to conclusion or not, in my opinion, it has ultimately made the right choice.