Wednesday, January 26, 2011

Wikipedia Gives the FBI a Lesson on Fair Use

It's long been known in TV and film production, and rights and clearances circles... that government logos and insignia may be used in creative depictions. You can dress an actor in an LAPD uniform to shoot your dramatic movie scene, no problem.

Apparently the FBI needed an object lesson, as they took on Wikipedia in its use of the FBI shield on its site. Wikipedia was quick to point out that the intent of law was to prevent someone from fraudulently impersonating an FBI agent, not any use of the shield at all, in any context:

"In your letter, you assert that an image of an FBI seal included in a Wikipedia article is “problematic” because “it facilitates both deliberate and unwitting violations” of 18 U.S.C. 701. I hope you will agree that the adjective “problematic,” even if it were truly applicable here, is not semantically identical to “unlawful.” Even if it could be proved that someone, somewhere, found a way to use a Wikipedia article illustration to facilitate a fraudulent representation, that would not render the illustration itself unlawful under the statute. As the leading case interpreting Section 701 points out, “The enactment of § 701 was intended to protect the public against the use of a recognizable assertion of authority with intent to deceive.” United States v. Goeltz, 513 F.2d 193 (1975). Our inclusion of an image of the FBI Seal is in no way evidence of any “intent to deceive,” nor is it an “assertion of authority,” recognizable or otherwise. If you read the cases construing Section 701, you find they center onsituations in which defendants represented themselves as federal authorities. I think you will be compelled to agree that the Wikimedia Foundation has never done this."

Here's the NY Times story from this past summer about the FBI's cease and desist letter to Wikipedia, and their wise retort: FBI, Challenging Use of Seal, Gets Back a Primer on the Law