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Blogger Wins First Amendment Right to Post Image of County Seal

September 8, 2011

When a blogger posts an image to her blog, she needs to be sure that she has the right to post such an image.

There are many ways to avoid copyright infringement, and fair use is often a last resort. But what if an image is protected by other means?

For example, what about government seals? Federal government entities cannot hold copyrights, of course, but can they protect their seals or other images by other specific statute or ordinance?

Bryan Rothamel, a blogger in Virginia, recently sued to challenge a 2010 Fluvanna Countyordinance prohibiting the display of the County seal unless expressly authorized by the County Board of Supervisors. Rothamel alleged that the ordinance was passed to stop his use of the seal, which he frequently posted alongside stories about his county government.The ordinance provides:

Sec. 2-7-2. Seal Deemed Property of the County; Unauthorized Use Prohibited.

The seal of Fluvanna County shall be deemed the property of the County; and no person shall exhibit, display, or in any manner utilize the seal or any facsimile or representation of the seal of Fluvanna County for non-governmental purposes unless such use is specifically authorized by law. (Ord. 9-15-10; Ord. 2-16-11)

Rothamel argued that the ordinance violated his rights under the First Amendment.
The U.S. District Court For the Western District of Virginia agreed.

Rothamel’s display of the seal on his blog does not convey a false impression of government approval of his speech, I hold that the ordinance violates the Free Speech Clause of the First Amendment as applied to Rothamel’s uses.

While the Court found that the statute as applied to Rothamel is unconstitutional, it declined to declare the statute unconstitutional on it’s face.

Having found the ordinance unconstitutional as applied to Plaintiff’s employment of the seal, I need not consider the ordinance’s facial sufficiency.

The Court left open the possibility that the ordinance could be used to forbid some uses of the County Seal, just not Rothamel’s use.

The Court likely took this more moderate approach because this type of statute is fairly common. For example, the Commonwealth of Virginia has a similar statute, though it is limited to commercial speech.

Federal law also makes it a crime to use U.S. government insignias for profit:

Whoever manufactures, sells, or possesses any badge, identification card, or other insignia, of the design prescribed by the head of any department or agency of the United States…except as authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both. 18 U.S.C. § 701

In sum, it is probably within your First Amendment rights as a blogger to use government seals or logos for non-profit or journalistic purposes. However, if you are attempting to profit from the use of the seal itself or selling copies of the seal, you could probably face criminal charges.

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