Is it permissible to use a governmental seal for editorial purposes in a magazine?
For example, in a news story about the Bureau of Alcohol, Tobacco and Firearms, could I use ATF's logo to accompany the story?
Law Stack Exchange is a question and answer site for legal professionals, students, and others with experience or interest in law. It only takes a minute to sign up.Sign up to join this community
18 U.S. Code § 1017 prohibits "fraudulent or wrongful" use of government seals. This seems to refer to situations where an attempt is made to create or circulate a document purporting to be issued or approved by a government agency or department when it was not in fact so issued or approved. That is not the case in the question.
As works of the US government, such seals are not usually subject to copyright protection. However, if the government hired a private contractor to create the seal design, copyright might well apply. If such designs were protected by copyright, fair use might well apply, depending on the usual four-factor analysis for fair use. I don't know of any special exemption from fair use for such seals. But i think trademark or similar protections are more likely to be relevant.
You cannot use government trademarks or government agencies' logos without permission. For example, you cannot use an agency logo or trademark on your social media page.
But it does not cite any law as the basis for this. Trademark protection would not apply if the seal is not being "used in trade" or if no reasonable person would believe that the source of the publication is in fact the government agency. Even if the seal design had been created by a private contractor, and was thus protected by copyright, such a use would quite likely be held to be a fair use.
Moreover, any US law or government action is limited by the US First Amendment, which provides for free speech not unduly restricted by the government. A bans on using the seal or logo of a government department or agency to refer to that part of the government, making it clear that the document did not come from the government, and was not endorsed or approved by the government, would probably violate First Amendment restrictions. I don't know of specific caselaw on this point, however.
In short, I think the government statement quoted above claims more protection than the law in fact allows, but I cannot be sure of that.
The same federal website says:
You cannot use a government work in a way that implies endorsement by a government agency, official, or employee. For example, you can't use a photo of a government official wearing your product in an ad.
That is probably correct, but does not seem to apply to the situation described in the question.
18 U.S. Code CHAPTER 33 prohibits vrious unauthorized uses of specific symbols, but most of the sections only prohibit muses intended or likely to deceive people into falsely thinking that a statement or document is issued or endorsed by a particular government entity. Nothing in that chapter seems to cover the case of a seal used to identify a government entity when it is very clear that the document is not issued or approved by the entity, but simply refers to the entity.
The First Amendment permits you to use the seal of a government agency to illustrate a story about that government agency. The government can no more prohibit you from displaying its seals for expressive purposes than it can prohibit you from displaying its flag.
The questions raised about possible trademark violations and implied endorsement are red herrings. Section 2(b) of the Lanham Act prohibits registering a trademark that "consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality," so the government therefore may not trademark its seals. In re City of Houston, 731 F.3d 1326, 1331 (Fed. Cir. 2013) ("As the nature of the mark is not disputed in this appeal — Houston admits that its city seal is an insignia under § 2(b) of the Lanham Act — the Board properly affirmed the examining attorney's refusal to register Houston's city seal.")
Even if the seal were a protected trademark, the context of its use -- in an editorial setting rather than for commercial purposes -- is protected by the First Amendment. For instance, in Renna v. Cty. of Union, N.J., 88 F. Supp. 3d 310, 323 (D.N.J. 2014), a county tried to stop a television host from using its seal in advertisements for a show about community affairs. The court noted first that the seal was not protected by trademark law, and that even if it was, the county's efforts to limit the host's expression would run afoul of the First Amendment:
Consider that the First Amendment prohibits a State from criminalizing the desecration of the United States flag as a form of political protest. ... Should a county, by means of an artful extension of trademark law, be permitted to quash political expression that uses its Seal? I think such an extension would be both unwarranted and Constitutionally risky.
The same is true of implied endorsements. The First Amendment does not permit the government to limit your expression because it thinks people might mistake it for government speech.
For instance, Rothamel v. Fluvanna Cty., 810 F. Supp. 2d 771 (W.D. Va. 2011), a county government adopted a law "prohibiting the display of the Fluvanna County seal unless expressly authorized by the Fluvanna County Board of Supervisors." The law was prompted by concerns about a blogger who had been using the county's seal in stories about county government, and there were reports that some people thought the seal indicated that the stories were official county publications. When a blogger challenged the law, the federal court entered a permanent injunction against enforcing it:
The County takes the position that the showing of the seal by private citizens is not a form of expression at all; rather, the seal is government property, like a government vehicle or other form of personal property. ... While the County is correct that Rothamel does not have the right to take possession of a physical seal owned by the County, the County cannot control all privately-owned images or representations of the seal simply by declaring an interest in managing its own property. The First Amendment requires a more specific and substantial interest in restricting speech than the broad desire to safeguard government property.
If it's being used to illustrate an article I don't see it being particularly problematical. After all, you're not passing said article as an authorised federal instrument. Hence, I'd say that it comes under fair-use. But you're best off checking with your companies lawyers as advice here is as is.
(Of course @MRyan disagrees. But then again in his comment, he says no, then yes, then no; and kinda contradicts himself all over the place as well as everybody else and where does that leave you? In nobody's land! Unless, that's his disciplinary mode...but even there, it's not helpful).