A couple weeks ago independent investigative journalist Ben Swann posted one of his signature “Reality Check” segments on the topic of NSA copyright claims being used to chill speech. The segment focused on an event in which Zazzle, the online marketplace where people can sell merchandise based on their own custom designs, removed some NSA-related T-shirts and other merchandise from the Liberty Maniacs store run by Dan McCall. The removed merchandise showed modified versions of the NSA seal that replaced the words “United States of America” with the cheeky slogan “Peeping While You’re Sleeping,” and below the seal was a statement that read “The NSA: The only part of the government that actually listens.” Zazzle notified McCall of the removals, citing a violation of their acceptable content guidelines, which includes a prohibition of “text or images that infringe on any intellectual property rights including, but not limited to copyrights, trademarks and rights of privacy/publicity.”
This isn’t the first time Zazzle has removed NSA-themed merchandise. Earlier in August, Max Read published a post on Gawker noting the removal of his PRISM logo T-shirts and several other similar products. Again, as explained in Zazzle’s takedown message to read, the merchandise was removed because it “contains an image or text that may infringe on intellectual property rights” of the NSA. The irony is that the PRISM logo itself makes illicit use of an image created by Adam Hart-Davis.
While I understand that this is all very frustrating on a social commentary and civil liberties level, the conversation around these and similar takedowns has left me more than a little bemused by the talk of copyright and intellectual property law. Swann’s report goes into issues of parody versus satire, and whether government works can even be copyrighted. Subsequent reports, such as this Daily Dot blog post or even this recent Corbett Report interview with McCall, also have focused on the copyright angle. The reason for my bemusement is that none of this has anything to do with intellectual property.
Beyond intellectual property
The general confusion about intellectual property law here is understandable, given that Zazzle’s removal notices cite such claims. However, it’s unclear whether the NSA actually made a copyright claim. In an response to the Daily Dot article linked above, the NSA writes that:
The NSA seal is protected by Public Law 86-36, which states that it is not permitted for “…any person to use the initials ‘NSA,’ the words ‘National Security Agency’ and the NSA seal without first acquiring written permission from the Director of NSA.”
Note that the NSA does not use the term “copyright.” Rather, they say that the seal is “protected by Public Law 86-36.” A quick Google search shows that Public Law 86-36 is the National Security Agency Act of 1959, the law that established the NSA half a century ago. Looking from the other direction, a quick search of Title 17 U.S. Code (the portion of federal law covering copyright) shows no reference to Public Law 86-36, or any other reference to the NSA seal or to government agency logos in general. This is important, because it shows that the primary law specifically protecting the NSA seal and the law generally protecting copyrighted works function on completely different levels.
It should be noted that the NSA seal is not the only government seal (or logo, insignia, motto, etc.) to be given statutory protection. Most notably, a few years ago Wikipedia received a takedown notice from the FBI with regard to that agency’s shield, citing 18 USC §701, to which Wikipedia basically said, “Stuff it.” The third bullet on the copyright page of USA.gov states that “You cannot use a U.S. government work in a way that implies endorsement by a U.S. government agency, official, or employee,” possibly referring to 18 USC §1017, which makes it illegal to create or use “the seal of any department or agency of the United States” in a fraudulent manner.
Public Domain Sherpa provides a little more information about such statutory protections:
US government works sometimes incorporate names, titles, slogans, symbols, or seals whose use is subject to restrictions by other laws. Although these restrictions have nothing to do with copyright, the end result is that materials are not in the public domain.
Why distinction matters
It’s valid to ask why any of this matters. At the end of the day, is there really a difference between the NSA seal being covered under copyright code or some other statute? As it turns out, there is indeed a big difference, as can be seen by taking a close look look at the actual statutes in question.
Perhaps unsurprisingly, the NSA’s statement above bastardizes the actual statute governing its seal. Section 15a is the relevant portion (text taken from the Senate Intelligence Committee’s website):
No person may, except with the written permission of the Director of the National Security Agency, knowingly use the words ‘National Security Agency’, the initials ‘NSA’, the seal of the National Security Agency, or any colorable imitation of such words, initials, or seal in connection with any merchandise, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency.
This last, bolded portion is the critical bit. Swann, McCall and others have cited the censored T-shirts as “fair use” exceptions of the copyright law. Fair use as a concept is described in §107 of the Copyright Code, and there is a long history of Supreme Court case law determining what can be considered fair use – such as drawing a difference between parody as fair use and satire as not fair use. However, because the NSA seal is not protected by copyright, “fair use” as a concept cannot be applied the NSA seal.
This is actually good news, because the statutory protection provided by the NSA seal seems to be more lenient than fair use exception and case law. So long you don’t give the impression that the NSA is endorsing any particular content or viewpoint, a lay reading of the statute seems to allow for uses not covered by “fair use” in the copyright sense. For example, it might be perfectly acceptable to use the NSA logo in a satirical work, so long as the various statutes relating to fraudulent use or implication of endorsement are not violated. Such use is theoretical, and I’m not aware of any case law that covers satirical use of protected government seals, logos, insignia, mottos, etc.
Some closing thoughts
As I said before, it’s not surprising that there is a lot of confusion about what constitutes copyright law and what constitutes other protections. As can be seen in reading the various accounts of these takedown notices, even intelligent, thoughtful people who research the issues can easily become mired in the statutory minutiae. Heck, it’s possible – perhaps even probable – that I’ve made an error or two in my own analysis here.
Which is why it’s important to be skeptical and carefully analyze every claim made. It’s clear that Zazzle’s claim that the shirts violate intellectual property law is ridiculous. Likewise, it’s clear that the NSA’s follow-up statement about the logo being absolutely protected by PL 86-36 is just as ridiculous.
If anything, this is yet another example of how overly broad federal regulations have become. The statutory protections against fraudulent use and implications of endorsement are understandable, but when agencies use them to silence critics, that’s bad. When companies become so confused and scared that they can’t even interpret the law correctly, and when their misinterpretations preemptively silence critics for the agencies — well, that’s just plain shameful.