This ABC News story should give the philosophers and legal eagles among us plenty to discuss. Obama Sale of First Family Photo Tests Campaign Rules:
A portrait of the president, first lady and their daughters taken in the Oval Office by an official White House photographer is prominently featured on Obama-Biden buttons for $5 apiece, and in an online campaign ad asking voters to “join our campaign.”
But more remarkable may be the legal and ethical questions raised by use of the photo, which was originally taken and published at taxpayer expense and for which political and commercial use is expressly prohibited.
White House spokesman Josh Earnest said in response to an inquiry from ABC News last week that the photos – which are freely available on the administration’s Flickr website – are “basically items in the public domain.”
“They cannot be used for commercial uses,” Earnest said at a press briefing, “but we’ve also seen a number of political campaigns, certainly in 2010, that used … photos off the Flickr website and incorporated them into their television advertisements and other advertisements.”
A disclaimer on the Flickr website underscores Earnest’s point, warning that the photos “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.”
But that appears to be precisely what the Obama Campaign has done.
Aides say the Obama campaign did not need to pay a royalty for use of the photo because it is publicly available. But neither the White House spokesman on legal and ethical affairs Eric Schultz nor campaign spokesman Ben LaBolt would respond to questions about whether the sale of the image on buttons constitutes commercial use.