Photo Attorney

Jan 10, 2009

US Government Owns Federal Prisoner's Creative Work

Wired.com reports on a lawsuit by a federal prisoner who unsuccessfully sued the US Government for copyright infringement. The issue arose when Robert Walton, who was serving a sentence at Leavenworth for bank robbery, created calendars as part of his assigned duties in prison.

But works by the U. S. government are not eligible for U. S. copyright protection. See my August 3, 2005 blog and 17 USC 105.

Further, 28 USC 1498(b) provides, in part:

That a Government employee shall have a right
of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, that this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used.

The US Court of Appeals for the Federal Court held that the prisoner was in "service" of the US Government when he created the calendars. Therefore, Walton doesn't own the copyright in the calendars - the government does.

Note that Wired.com states that Walton "copyrighted" the calendars. Such use of the term is inaccurate and does not help photographers. Please use the correct term - "registered" - for filing your copyrighted works with the US Copyright Office. See my June 21, 2006 blog for more information.

Thanks to John Williams for submitting this alert.