October 04, 2004
Mount Saint Helens VolcanoCam Images: Terms of Use

Thumbnail of image from Mount St. Helens VolcanoCam 2004-10-04 at 11:29:01 PDTThe US Forest Service operates a Mt. St. Helens VolcanoCam.

Their terms of use regarding the images are probably well-intentioned, but are an interesting example of a misunderstanding of both copyright law and the internet. The terms:

1. They give me permission to link to their page. (Woohoo!)
2. They give me permission to use the images, but ask[?] that I credit them, link back, and contact them if I do use them.
3. They don't give me permission to make derivative works, unless only the size of the image is changed and the aspect ratio kept intact. And if I do that, they ask[?] for a link back.
4. I cannot use frames on my website to capture their website.
5. I cannot require registration on MY site as a precondition to seeing the volcano images or links that I provide.
6. I cannot make any commercial use of the images, and if I use the images on my website, that page cannot even contain non-commercial advertising!
7. I am encouraged to make my web pages standards-compliant and Section 508 accessible.

Now, one would guess that these images are created by Forest Service employees, i.e., U.S. government employees, during the course of their employment, and so I believe all these images are in the public domain. A federal statute (17 USC Section 105) states that:

"Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."
When combined with the "work for hire" doctrine (17 USC Section 201(b))
"In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."
we would appear to be in a situation where government employees are creating images in the course of their employment and the copyright in those images would belong to the employer, namely the Federal Government. But since the Federal Government cannot acquire copyrights in that manner, the images would be in the public domain. (This could certainly be argued about, but it is a long-standing principle going back to Wheaton v. Peters, 33 U.S. 591 (1834) where the U.S. Supreme Court held that the written opinions of Federal judges were in the public domain because of reasoning analogous to that just explained.) This is not an accident either. These products of our government being in the public domain is a good thing. As taxpayers, we've usually already paid for them once, so there's no reason for the government to wrest additional licensing fees from us to use what we've already paid for!

I will consider the possibility that someone else who could hold the copyright is producing the images in a moment.

But first, if the images are in the public domain, and given that I refuse to enter into any contract with the Forest Service regarding the use of the volcano images, I think the only item above that they can actually enforce is the bizarre #4. I'm not sure what the legal theory would be, but it seems like (it could be) some sort of misrepresentation for me to capture their site within a frame on my own website. But actually, even then, if the outer frame had enough clear disclaimers, (and again depending on the legal theory) then they might not even be able to prevent that.

Finally, in at least the case of this post, even if someone other than government employees produces the images, and they do hold a valid copyright in them, my use of the thumbnail above is a fair use. The Ninth Circuit (in which both I and the volcano reside) held in Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) that thumbnail images were a transformative fair use, especially in circumstances like these, where my use is non-commercial and my purpose is educational.

Poking around their website a little more (is that link allowed?!), I see that the Northwest Interpretive Association, a non-profit, donated the money for the VolcanoCam, while the VolcanoCam's webserver was a Government surplus Win 2000 box. It does look like the VolcanoCam and its webserver are operated by the Forest Service's employees, presumably during working hours, and it also sounds like the U.S. Geological Survey (that's a .gov site) studies the images. That is, it sounds like the images are produced 1) by government employees 2) while on government time 3) on a government-purchased webserver 4) for use on a government website and 5) for use, in part, by government researchers or to promote the park to tourists, which is also a government purpose. Only the camera itself was purchased with non-government funds. The factors in a work-for-hire case can be complex, but on balance I think I'd stand by the analysis above.

But in this litigious world, I would urge you that I am not a lawyer (yet) and I am certainly not your lawyer, and so the above is not legal advice. If you've got big plans for some VolcanoCam images, it sounds like the folks at the U.S. Forest Service have some questions for you. And while you're at it, consider donating some money to that non-profit (pdf), so they can keep the VolcanoCam going and add more features and locations. Indicate on your donation that you want VolcanoCam images to be freely available to the public. Money talks!

Posted by Brian W. Carver at October 04, 2004 04:24 PM | TrackBack

I recently picked up a Department of Homeland Security leaflet at the airport. Its subject was permitted and forbidden articles for transport. At the bottom it bore a notice "Copyright (c) U.S. Department of Homeland Security." Clearly out of bounds.

Posted by: Rick Prelinger on October 4, 2004 05:33 PM

Looks like you hit the nail right on the head. The new self extracting video on the USGS site has a little copyright statement that states the images are in public domain.

Posted by: Sean Mahoney on October 8, 2004 02:38 PM

Thanks for that heads up. The USGS page I think you're referring to is the credits page for USGS video which says, "Most USGS video footage is in the public domain and CANNOT be copyrighted."

Of course, they go on to say something else that may not be accurate: "Although at present, no fee is charged for using the video footage, credit MUST be given to the U.S. Geological Survey unless otherwise instructed to give credit to another source."

When something is in the public domain, not even attribution is required or can be enforced. They might try to use an author's moral rights theory, which would be more effective outside of the U.S., but here the Federal Copyright statutes preempt most of these doctrines, and those Federal laws don't provide authors the right to require attribution for public domain works.

Posted by: Brian W. Carver on October 8, 2004 07:00 PM

I was actually mistaken about the agency I was referring to. If you download one of the VolcanoCam self extracting movies from the USDA Forest Service site, it has a little copyright notice that comes up before it will extract the files.

Posted by: Sean Mahoney on October 9, 2004 08:02 AM

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