No one seems to take the legal warning on official White House photos seriously – including President Barack Obama’s own re-election campaign.
Obama’s campaign rolled out a pair of web ads about a week ago that feature the president, the first lady and daughters Malia and Sasha. While the photo was edited to remove the background, eagle-eyed ABC News White House veteran Ann Compton noted that the image seems to be a holiday portrait taken in the Oval Office last December by official White House Photographer Pete Souza.
Like other photos posted on the White House’s Flickr stream, it went out with this stern warning: “This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.”
Use of the photo in the Obama campaign’s political web advertising seems to violate several of those injunctions. However, at the daily press briefing on Friday, a White House spokesman suggested the web site’s ban on political use of the photos might be overstated.
“They cannot be used for commercial uses, that’s true. But we’ve also seen a number of political campaigns, certainly in 2010, that used Flickr off the photo — photos off the Flickr website and incorporated them into their television advertisements and other advertisements,” Principal Deputy Press Secretary Josh Earnest said in response to questions from Compton. “My understanding about the way that that material that’s publicly released is, is that with the exception — with the commercial uses exception that you stipulated, that these are basically items in the public domain.”
As Earnest hinted, the White House’s warning against use of official photos is mostly bluster. Federal law dictates that federal government employees’ work product, such as official White House photos, are not subject to copyright. In some states, the president might have the right to prohibit advertising that implies his endorsement of a commercial product. But that has nothing to do with use of White House photos, per se-his lawyers could object if a press photo, personal snapshot, or even just Obama’s name was used to convey that impression.
The part of the White House warning that deals with political materials seems aimed in part at guarding against false claims of political endorsement-something clearly not at issue when it comes to the president’s own campaign. Still, claiming a false political endorsement isn’t illegal-yet. The administration has lent support to legislation introduced in Congress last year that would create a civil cause of action to stop false endorsement claims in a federal election. Whether such a measure would be constitutional is uncertain.
Another Obama spokesman noted to POLITICO that in 2008 an image of President George W. Bush was used in fundraising appeals by the Republican National Committee. It was not clear whether the photo was an official one or privately taken.
The Obama campaign actually used the same Oval Office image of the Obama family in a blast e-mail back in December, which stirred questions at that time about the fine-print warning accompanying the official images.
The campaign’s use of the family photo has also drawn attention for another reason: it seems to embroil the Obama children directly in political efforts and perhaps even fundraising-something that seems to be in tension with the president and first lady’s desire to keep their children out of the spotlight and the partisan fray.