FAR 27.405-1—Special works.
Plain-English Summary
FAR 27.405-1 explains when the Government should use the special-purpose data rights clause at 52.227-17, Rights in Data—Special Works, and how that clause may be tailored. This section covers contracts primarily for producing or compiling data for the Government’s own use, as well as situations where the Government needs to restrict distribution and use of the data or obtain indemnity for liabilities tied to the data’s content, performance, or disclosure. It gives concrete examples of covered work, including audiovisual works, motion pictures, television recordings, scripts, musical compositions, sound tracks, agency histories, surveys, instructional materials, reports and studies, privacy-sensitive compilations, investigatory reports, early-release-sensitive data, and certain computer software programs. The section also addresses contract-specific limits on use, release, and reproduction; possible deletion of the Government’s copyright-assignment right; possible deletion or narrowing of the contractor’s indemnity obligation; and special tailoring when the work is being produced for public dissemination rather than internal Government use. In practice, this section is about matching the rights clause to the mission and the risk profile of the work, so the Government gets the access and protections it needs without overreaching where free speech, artistic license, or unnecessary copyright assignment concerns are present.
Key Rules
Use special works clause
Use 52.227-17 when the contract is mainly for producing or compiling data for the Government’s own use, or when the agency needs to control distribution/use of the data or obtain indemnity for liabilities arising from the data. The clause is aimed at special-purpose works rather than ordinary data deliverables.
Covered work examples
The rule lists common examples such as audiovisual productions, agency histories, surveys, instructional guidance, reports and studies, privacy-sensitive compilations, investigatory reports, early-release-sensitive data, and certain software programs. These examples help identify when the special works clause is appropriate, but they are not the only possible covered items.
Contract may limit use
The contract may specify the purposes and conditions, including time limits, under which the data may be used, released, or reproduced outside contract performance. For audiovisual and similar works, the contract may also include restrictions tied to talent releases, music licenses, and similar rights issues.
Copyright assignment may be removed
The clause’s provision allowing the Government to obtain assignment of copyright in data first produced under the contract may be deleted if the contracting officer decides that assignment is not needed to meet the contract’s objectives. This is a discretionary tailoring decision, not a default requirement in every case.
Indemnity may be narrowed
The contractor’s indemnity for violations involving trade secrets, copyrights, privacy/publicity rights, libel, or other unlawful matter may be deleted or limited if the contracting officer determines that the nature of the data makes such liability unlikely. The clause should be adjusted to fit the actual risk.
Public-purpose works need tailoring
When special works are produced for public dissemination rather than for the Government’s own use, agencies may modify the clause to meet mission needs while protecting free speech, freedom of expression, and the creator’s artistic license. This is especially important for publicly distributed audiovisual or creative works.
Responsibilities
Contracting Officer
Determine whether 52.227-17 is the right clause for the acquisition, based on the nature of the work and the need for restricted use or indemnity. Specify any limits on use, release, reproduction, or time periods; decide whether copyright assignment should be deleted; decide whether indemnity should be deleted or narrowed; and tailor the clause appropriately for public-purpose works.
Agency
Identify mission needs that justify special data rights treatment, including confidentiality, privacy, enforcement, regulatory, follow-on acquisition, or public dissemination concerns. Ensure the clause is modified only to the extent needed to protect agency interests while respecting free speech and artistic-license considerations when the work is intended for public release.
Contractor
Produce the special work in accordance with the contract’s data-rights restrictions, use limitations, and any tailored copyright or indemnity provisions. Protect third-party rights issues such as privacy, publicity, copyright, and other unlawful content concerns, and comply with any conditions on reproduction, release, or distribution.
Practical Implications
This section is a clause-selection and clause-tailoring guide, so the main day-to-day task is deciding whether the work is ordinary data or a special work with heightened control needs.
Contracting officers should not automatically include the Government copyright-assignment and indemnity language without checking whether those provisions are actually needed for the acquisition.
Privacy, publicity, and third-party rights issues are common pitfalls, especially for audiovisual productions, interviews, compilations of personal information, and published materials.
For software and sensitive data, early release can create real mission or competitive harm, so the contract should clearly state any restrictions on use and disclosure.
When the end goal is public distribution, over-restrictive data-rights terms can interfere with expression and creative control, so agencies should tailor the clause carefully rather than using a one-size-fits-all approach.
Official Regulatory Text
(a) The clause at 52.227-17 , Rights in Data-Special Works, is for use in contracts (or may be made applicable to portions thereof) that are primarily for the production or compilation of data (other than limited rights data or restricted computer software) for the Government’s own use, or when there is a specific need to limit distribution and use of the data or to obtain indemnity for liabilities that may arise out of the content, performance, or disclosure of the data. Examples are contracts for- (1) The production of audiovisual works, including motion pictures or television recordings with or without accompanying sound, or for the preparation of motion picture scripts, musical compositions, sound tracks, translation, adaptation, and the like; (2) Histories of the respective agencies, departments, services, or units thereof; (3) Surveys of Government establishments; (4) Works pertaining to the instruction or guidance of Government officers and employees in the discharge of their official duties; (5) The compilation of reports, books, studies, surveys, or similar documents that do not involve research, development, or experimental work; (6) The collection of data containing personally identifiable information such that the disclosure thereof would violate the right of privacy or publicity of the individual to whom the information relates; (7) Investigatory reports; (8) The development, accumulation, or compilation of data (other than that resulting from research, development, or experimental work performed by the contractor), the early release of which could prejudice follow-on acquisition activities or agency regulatory or enforcement activities; or (9) The development of computer software programs, where the program- (i) May give a commercial advantage; or (ii) Is agency mission sensitive, and release could prejudice agency mission, programs, or follow-on acquisitions. (b) The contract may specify the purposes and conditions (including time limitations) under which the data may be used, released, or reproduced other than for contract performance. Contracts for the production of audiovisual works, sound recordings, etc., may include limitations in connection with talent releases, music licenses, and the like that are consistent with the purposes for which the works are acquired. (c) Paragraph (c)(1)(ii) of the clause, which enables the Government to obtain assignment of copyright in any data first produced in the performance of the contract, may be deleted if the contracting officer determines that such assignment is not needed to further the objectives of the contract. (d) Paragraph (e) of the clause, which requires the contractor to indemnify the Government against any liability incurred as the result of any violation of trade secrets, copyrights, right of privacy or publicity, or any libelous or other unlawful matter arising out of or contained in any production or compilation of data that are subject to the clause, may be deleted or limited in scope where the contracting officer determines that, because of the nature of the particular data involved, such liability will not arise. (e) When the audiovisual or other special works are produced to accomplish a public purpose other than acquisition for the Government’s own use (such as for production and distribution to the public of the works by other than a Federal agency) agencies are authorized to modify the clause for use in contracts, with rights in data provisions that meet agency mission needs yet protect free speech and freedom of expression, as well as the artistic license of the creator of the work.