A couple of weeks ago Salon reported that the NSA had allegedly sent a request to self-printing site Zazzle asking that it take down a parody t-shirt that used an altered version of the NSA logo. When contacted, the NSA first claimed that “[t]he NSA seal is protected by Public Law 86-36, which states that it is not permitted for ‘ . . . any person to use the initials “NSA,” the words “National Security Agency” and the NSA seal without first acquiring written permission from the Director of NSA.’” But shortly after that, the NSA updated its statement to add that it had not contacted Zazzle to request the removal of any item since 2011, when it asked that a coffee mug with the NSA seal be removed from the site.
Putting the two statements together, it looked as though someone at Zazzle, remembering the earlier incident, mistakenly thought that all uses of the logo were forbidden. It seemed to be an isolated incident.
Except that now it’s happened again. This time, a computer science professor at Johns Hopkins, Matthew Green, received a request from his dean that he pull down a blog post on university servers that linked to some of the leaked NSA documents and contained the NSA logo. The university later confirmed that the reason for the request was that it “received information” that Green’s post “contained a link or links to classified material and also used the NSA logo.”
Before this emerging folklore about the NSA logo gets any stronger, let’s be clear: the NSA misquoted the statute in its response to the Salon story. Use of the NSA logo merely to criticize or comment on the NSA is not illegal; and even if Congress tried to make it illegal, it would likely violate the First Amendment, as Eugene Volokh has noted.
The relevant statute does not say what the NSA spokesperson says it says. Here is the relevant provision, 50 U.S.C. § 3613(a):
No person may, except with the written permission of the Director of the National Security Agency, knowingly use the words “National Security Agency”, the initials “NSA”, the seal of the National Security Agency, or any colorable imitation of such words, initials, or seal in connection with any merchandise, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency.
The part in italics is the part the NSA spokesperson left out in response to the Salon story, and it’s the part that appears to be thoroughly lacking for either the parody t-shirt or Prof. Green’s blog post. (Image below; click to enlarge.) The statute only applies to conduct like the 2011 incident at Zazzle, where someone was apparently selling coffee mugs that looked like official NSA mugs, with the logo and nothing else. Congress has given the NSA limited trademark-like protection over its logo to prevent such uses. But even full trademark protection does not allow trademark owners to stop obvious parodies or criticism that uses the trademarked name or logo; and it also does not prevent a news organization from using the logo to illustrate a story about the mark owner. Even registering a trademarked term as a domain name, and using it to put up a site criticizing the mark owner, has been held to be protected First Amendment activity in a number of cases (see, e.g., Lucas Nursery & Landscaping, Inc. v. Grosse, 359 F.3d 806 (6th Cir. 2004)).
So, use the NSA logo to your heart’s content in blog posts about the NSA. (As a U.S. government agency, the NSA has no copyright in its logo either, under 17 U.S.C. § 105: “Copyright protection under this title is not available for any work of the United States Government . . . .”) Just don’t sell any official-looking NSA coffee mugs.
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