The United States government is one of the largest publishers in the world and most of its works, by law, are in the U.S. public domain. United States copyright law under 17 U.S.C. § 105 states that U.S. government works, defined as works prepared by an officer or employee of the federal government as part of that person’s official duties, are not copyrightable.[1] This means that anyone can, without restriction under copyright laws, reproduce the works in print or digital form, create derivative works, perform the work publicly, display the work, or distribute copies or digitally transfer the work to the public.[2]

            While copyright law exempts a massive amount of federal government work, not all U.S. government content can be used without restrictions. In particular, six key exceptions exist.[3]

First, U.S. government trademarks or the logos of U.S. government agencies may not be used without permission. For example, NASA prohibits use of its logo and seal by persons who are not NASA employees or on products or websites that are not sponsored by NASA.[4]

Second, U.S. government work can never be used in a way that suggests endorsement or sponsorship by a U.S. government agency or official. The U.S. Government Accountability Office (GAO), for instance, expressly notes in its Copyright and Use of Images policy that GAO products and materials cannot be used to state or imply the endorsement by GAO or by any GAO employee.[5] A company, therefore, may have an issue using a photo of a GAO official using its product in an advertisement without approval from the GAO.

Third, work prepared for the U.S. government by independent contractors such as writers, artists, or web designers, may be protected by copyright. Because an independent contractor is not a government official, the copyright exclusion in 17 U.S.C. § 105 does not apply, even if the work is transferred to the federal government.  

Fourth, the U.S. government may, like any other entity, use the intellectual property of another with permission. Consequently, information or images that appear on U.S. government websites may not be owned by the U.S. government and may be the protected intellectual property of another. In this case, the document will indicate the copyright holder.

Fifth, works of state and local governments are not covered by 17 U.S.C. § 105 and so may be protected by copyright.

Sixth, U.S. government work may be protected outside of the United States under copyright laws of other countries. For instance, Canada, which provides protection for works created for or published by its government, allows the U.S. government to register content and receive copyright protection in Canada.[1]

Use of U.S. government work requires careful attention to the source of the content. The use of government photography provides a perfect example. The government takes and compiles innumerable photos, ranging from NASA’s Hubble Telescope pictures to images taken around the world by the Army, many of which are in the public domain. Nevertheless, the U.S. government website that compiles these images reminds users some images may be protected by license or copyright and encourages reading the disclaimers on each site before using the images.[2] Photos taken by the Smithsonian, for example, are subject to its Terms of Use and therefore restricted to personal, educational, and other non-commercial uses.[3] Those seeking to use U.S. government content should consider any terms or conditions associated with the content and analyze the applicability of 17 U.S.C. § 105 and its exceptions prior to use.

Barbara Marchevsky