Photography Copyright and US Government

[Hermitian]

I understand that “Work by the U.S. Government is not eligible for copyright protection.” But I am unclear on what exactly is work for the US government (USG)?

Let’s say I am a USG employee on a USG paid travel trip. While performing my duties for the USG on their property, I snap a photograph of something using a personal camera. Since I would not have been there otherwise and since I was being paid at that moment by the USG (and on their property), am I not allowed to hold that copyright?

How does this change if I am a contractor?

This is obviously not about big bucks or anything, I am not interested in hiring lawyers and such. But I would not want to imply that I own something I do not.

[Little_Nemo]

IANAL but I believe the distinction is that if you’re a direct employee then anything you do while you’re on duty is assumed to be work you did for your employer. If you’re a contractor you were hired to do a specific assignment so only that assignment belongs to your employer.

[Edward_The_Head]

You work for the Government, just say you’re on break!

[Duckster]

@Hermitian

Let’s say I am a USG employee on a USG paid travel trip. While performing my duties for the USG on their property, I snap a photograph of something using a personal camera.

WAG - You are on duty. Splitting hairs but being on duty trumps using your personal camera on duty. The photo is public domain.

[RealityChuck]

The issue isn’t copyright; it’s taking personal photos while working. The photos are yours, but the fact you took them while you were supposed to be doing something else might get you in trouble (though I doubt anyone would push the issue).

The government copyright applies to things published by the government, and probably extends to photos taken as part of government business (i.e., if it was part of your job duties). A personal photo would be your own photo, not a work by the government.

It’s the same thing as a private contractor. If you take photos as part of your contract, they belong to the government as work for hire. If you take a personal snapshot with your camera, it is not.

[mhendo]

If you’re an employee, your employer holds copyright to works created within the scope of your employment. The question to be decided, in this case, would be exactly what constitutes the scope of your employment, and whether the picture you took fell within those bounds, in terms of the time that you took it or the duties you are required to perform.

In that sense, Edward The Head’s tongue-in-cheek comment is actually quite relevant. If you did indeed take the picture while you were on an officially-recognized break from your duties, i think copyright would fall to you. If you were on the clock, Duckster’s answer seems most appropriate. But, the government seems to be a special case (see below).

Things change a LOT if you’re a contractor. In that case, there needs to be a specific agreement between the two parties that the work you are doing is a work for hire. It’s not enough to just say, “We have a contract whereby you will do work for me.” The agreement needs to specify that the work you produce will be a work made for hire. This Findlaw article has an example:

April hired Don, a software developer, to design the software for April’s multimedia work. April and Don did not agree in writing to consider the software a work made for hire, so the software is not a work made for hire. Don owns the copyright in the software.

Even if the hiring party and independent contractor agree in writing to consider the independent contractor’s work a work made for hire, the work is not a work made for hire unless it falls into one of the eight special categories listed in the first paragraph of this subsection.

So, even with an agreement, the type of work must fall into one of 8 reasonably specific areas in order to be considered a work for hire. Those areas are:

* A contribution to a collective work.
* Part of a motion picture or other audiovisual work.
* A translation.
* A supplementary work.
* A compilation.
* An instructional text.
* A test or answer material for a test.
* An atlas.

If my understanding of the law is correct on this matter, you would own copyright in your photograph even if you were doing a work for hire, unless the photograph fell specifically into the type of work for hire that was spelled out in your contract. As you can see, photographs are not specifically mentioned in the list of 8 areas that can constitute work for hire, although if you were hired to takes photograph/s as a “contribution to a collective work,” then it might apply.

There was actually a case covering this sort of thing decided by the Supreme Court, called Community for Creative Non-Violence v. Reid:

The issue in Reid was who owned the copyright in a sculpture created by the artist Reid for the Community for Creative Nonviolence (CCNV). The Court concluded that the work made for hire rule did not apply for two reasons: Reid was not an employee of CCNV, and the sculpture was not one of the eight types of works that could be designated a work made for hire by written agreement of the parties.

But here comes the argument about the government being a special case.

According to this government page, if the work was not as part of your official duties, then you should be able to assert copyright, even if you did it while on the clock. The reason is that “official duties” seem to be quite narrowly defined by the government. Here’s what they have to say:

A “work of the United States Government,” referred to in this document as a U.S. Government work, is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.

<snip>

An officer’s or employee’s official duties are the duties assigned to the individual as a result of employment. Generally, official duties would be described in a position description and include other incidental duties. Official duties do not include work done at a government officer’s or employee’s own volition, even if the subject matter is government work, so long as the work was not required as part of the individual’s official duty. (S.REP. NO. 473, 94th Cong., 2d Sess. 56-57) (1976) “A government official or employee should not be prevented from securing copyright in a work written at his own volition and outside his duties, even though the subject matter involves his government work or his professional field.”)

Bolding mine.

So, if you took that photo while on a trip for the government, whether you would able to able claim copyright would depend on whether taking the photo fell under the definition of your official duties. And this, obviously, would depend heavily on what your official duties actually were, and what you were doing when you took the photograph. It’s also not clear to me whether “official duties” applies to any time that you are on the clock, or whether there are things you can do while at work that do not fall under official duties.

Your job description is important here. As the same website notes, in one particular case:

Herbert. v. United States, 36 Fed. Cl. 299 (Fed. Cl. 1996). The court said: “The specific task need not be individually assigned in order to qualify as part of the official functions of a government employee. Where a government employee’s official functions include research, generally, the employee may lose the right to sue for copyright infringement even where he was not specifically required to perform the work at issue.”

As a practical matter, i think RealityChuck’s answer is probably pretty accurate, but copyright law is complex enough, and sufficiently subject to the vagaries of court decisions, that it’s worth being aware of as many different factors as possible.

[Hermitian]

Wow. Great responses, especially mhendo.

This does seem complicated!

If I interpret mhendo’s post correctly, a trash collector in a national park that pauses to take a cell phone picture of a beautiful sunset while on his way to the local dumpster is not prevented from claiming copywrite.

In my case, I was not instructed to take pictures. However, it could be argued that my “duties” included research and my bringing a camera and taking pictures was merely a well performing employee/contractor on official duty.

I could also claim that they were taken during a 5 minute break.

It looks like there is a lot of grey area that would really need situation details and lawyers to truly sort out.

Thanks for the help.

[mhendo]

I should add: i’m not a lawyer. The above is my layman’s reading of the laws, and of articles and instructions related to the laws. The law is a specialized topic, and copyright law is full of exceptions and caveats and all sorts of other problems, so it could be that i’ve missed something important, or that my analysis is wrong.

[Exapno_Mapcase]

@Hermitian

If I interpret mhendo’s post correctly, a trash collector in a national park that pauses to take a cell phone picture of a beautiful sunset while on his way to the local dumpster is not prevented from claiming copywrite.

Nobody can claim copywrite.

The word is copyright, as in you control the right to copy and therefore the right to tell others whether or not they can make a copy. The word is its own mnemonic, if only people would remember it properly.