Are photographs taken by the Smithsonian Institution considered Public Domain?

[Martini_Enfield]

I’m currently working on an article that needs a couple of “modern” illustrations, and have found some potentially suitable ones on the Smithsonian Institute website.

Now, I understand that images taken by US Government employees in the course of their duties are considered to be in the public domain, but is a Smithsonian employee deemed to be a US Government employee, and if so, would a photograph of an item in their collection (posted on their website) be considered in the public domain?

[IAmNotSpartacus]

It will probably be OK but if the object in the photograph is otherwise protected then a derivative work situation might could arise. IANAL, CYA, YMMV, FDA etc.

You can to refer to theterms of use on their website

PERMITTED USES 	

The Smithsonian welcomes you to make fair use of the Content as defined by copyright law. Information on United States copyright fair use law is available from the United States Copyright Office: U.S. Copyright Office Fair Use Index . Please note that you are responsible for determining whether your use is fair and for responding to any claims that may arise from your use.
In addition, the Smithsonian allows personal, educational, and other non-commercial uses of the Content on the following terms:

1.  	You must cite the author and source of the Content as you would material from any printed work.
2.  	You must also cite and link to, when possible, the SI Website as the source of the Content.
3.  	You may not remove any copyright, trademark, or other proprietary notices including attribution information, credits, and notices, that are placed in or near the text, images, or data.
4.  	You must comply with all terms or restrictions other than copyright (such as trademark, publicity and privacy rights, or contractual restrictions) as may be specified in the metadata or as may otherwise apply to the Content.
For commonly asked questions about use of Smithsonian content, see FAQs below.

[anson2995]

@Martini_Enfield

Now, I understand that images taken by US Government employees in the course of their duties are considered to be in the public domain, but is a Smithsonian employee deemed to be a US Government employee, and if so, would a photograph of an item in their collection (posted on their website) be considered in the public domain?

This is a trickier question than you might imagine, but I would say that the answer is no, such photos are not in the public domain.

The Smithsonian Institute is a hybrid public/private entity, which receives some but not all of its funding from the federal government. As such, the SI claims a copyright for some of the work it produces, and they do seek to enforce copyright for much of their holdings (eg, items that were donated to or purchased by the SI). A significant portion of their revenues comes from licensing such content.

Fair use doctrine still applies, but that’s a whole different story.

[Rigamarole]

You should probably call them and ask if you can use the image.

[Martini_Enfield]

Thanks for the replies, everyone!

I managed to track down another suitable image that was in the public domain, so it’s not as much of an issue now. But I’ll know for next time I find something interesting on their site and think “oooh, that looks useful!” that it’s not public domain.