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copyright status of White House photos on Flickr?

On the "noise list" at the School of Information at Berkeley, we recently got into a discussion about the copyright status of The Official White House Photostream's Photostream on Flickr.   Some of us would agree with the argument presented on the blog of the Creative Commons (Why Did the White House Choose Attribution and not Public Domain?) that

The photos are likely in the public domain because they are works created by the federal government and not entitled to copyright protection. As you might recall, the Whitehouse.gov’s copyright notice indicates as much.

At present, Flickr doesn't allow an ordinary user to state that one of his pictures is in the public domain.    I've been waiting for CC0 to be added to list of CC licenses you can use.  Of course, the White House isn't necessarily a regular joe user,  and there is already a structure in Flickr already to handle public domain-ish photos:  the Flickr Commons with its "no known copyright restrictions" provision .    Perhaps putting White House photos in Flickr Commons won't quite work either.  Would one be able to put images produced by the US government  into the Flickr Commons in general?

BTW, one of the comments on the Creative Commons post pointed to http://www.flickr.com/people/whitehouse/ in which we find the following stipulations:

These official White House photographs are being made available for publication by news organizations and/or for personal use printing by the subject(s) of the photographs. The photographs may not be used in materials, advertisements, products, or promotions that in any way suggest approval or endorsement of the President, the First Family, or the White House.

Given that these photos are arguably in the public domain (as argued in the creativecommons.org blog post), are these stipulations legally enforceable?

{ 3 } Comments

  1. jkramersmyth | May 3, 2009 at 2:51 pm | Permalink

    In response to your question "Would one be able to put images produced by the US government into the Flickr Commons in general?", the Library of Congress and Smithsonian are already part of the Flickr Commons. Wouldn't photos from these institutions count as photos produced by the US government?

  2. Jonathan Rochkind | May 3, 2009 at 3:28 pm | Permalink

    Potentially not enforceable under copyright (IF taken by government employees, AND not enforceable in the US — the US federal government can have copyright in other places, just not the US).

    But the latter part seems to me quite likely enforceable by other law. If someone falaciously claims that I've approved or endorsed something I haven't, I have cause for legal action somehow I'd assume. Not neccesariy as an issue of intellectual property at all.(And I'm not sure how/if trademark would apply here)

  3. Raymond Yee | May 8, 2009 at 10:47 am | Permalink

    Jeanne — I meant to ask the question of whether it'd be ok to place *any* image produced by the feds into the Flickr Commons.

    Jonathan — thanks for clarifying the issue of copyright within the US vs outside the US and also the applicability of legal doctrines other than copyright.

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