I want to use a photograph that is in the public domain in the United States. However, I would be sending a document with this photograph around entities in Europe. I know that just because something is in the public domain in the United States, that doesn't mean that it is in the public domain in other countries. Can I use this photograph or not and what decides this?

This is the photo in question:


The "Permission" field in the "Summary" section details what I'm talking about.

1 Answer 1


Under US law, the particular work is not protected by copyright, being a government work. Therefore, an infringement suit in the US would go nowhere. Under the Berne Convention Article 7(8),

the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work

This is acknowledged via EU Directive 2006/116/EC, Article 7:

Where the country of origin of a work, within the meaning of the Berne Convention, is a third country, and the author of the work is not a Community national, the term of protection granted by the Member States shall expire on the date of expiry of the protection granted in the country of origin of the work, but may not exceed the term laid down in Article 1.

So unless there is a special provision in the country in question, the shorter of the protection-time of the country of origin and that of the country of lawsuit prevails, i.e. zero in this instance. No jurisdiction in Europe appears to have created a special exception to the effect that government works are subject to copyright protection.

  • A German court ruled that the rule of the shorter term doesn't apply to US works, as per the copyright treaty between the two nations signed in 1892.
    – prosfilaes
    Aug 15, 2022 at 16:14

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