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When SpaceX Takes Photos on a NASA Mission, Copyright Law Explodes

And what happens when photos from space can't be used by the public?

by Jason Koebler
Feb 12 2015, 4:48pm

Photo of DSCOVR, in the public domain (we think) Image: NASA

Most every photo you've ever seen of space—at least the ones taken in space, have been yours. You're either a taxpayer, or someone in the United States is a taxpayer for you. But now, with private companies flying missions to space seemingly every other week, it's time to wonder: Who owns SpaceX's photos?

The most immediately obvious answer to the question is: SpaceX. But copyright law in the United States is extremely convoluted, and that's not necessarily the case. Electronic Frontier Foundation copyright expert Parker Higgins, who raised the question in the first place, noted, tongue-in-cheek, that it's "frustrating that it takes an understanding of rocket science" to figure it all out.

You can do pretty much anything you want with photos that are in the public domain, as NASA's are. You can print (most) Hubble Space Telescope photos on a poster and sell them; you can use NASA archival videos in a space documentary; you can take a photo of Neil Armstrong jumping up and down on the moon, green screen an alien onto it, and sell it to conspiracy theorists.

"If I were a professor teaching copyright, I would put this on the test because it can be argued both ways"

Consider, for a moment, that space print leggings, which were crazy popular a couple years ago, were created out of photos that were in the public domain.

"NASA would have never approached leggings manufacturers," Higgins told me. "If we can use things without licensing, it just opens up this amazing, generative possibility."

A less frivolous example is The Blue Marble, a photo taken by the Apollo 17 crew in 1972, and Earthrise, two photos that helped spur the environmentalist movement.

"When this photo came out of the entire earth, it clicked for a lot of people," Higgins said. "To do that, you need to have a photo be in the right place at the right time to have an impact. And the way you ensure something is in the right place at right time, well, you let it be in many places, all the time."

Earthrise. Image: NASA

So, this stuff matters. We have lived in a world in which space—or at least photos of it—belongs to all of humanity. And we're quickly leaving it as SpaceX gets better and better at sending satellites into orbit. It's worth noting that other, non-US space agencies have their own rules and copyright laws.

SpaceX rockets are private vehicles. But the vehicles are flying a public entity's mission, paid for by taxpayer funds. NASA is paying for the actual launch, with your money. Are SpaceX's photos yours then?

Take this photo, taken during yesterday's DSCOVR launch:

Higgins thinks SpaceX may have a copyright on it, but that it's arguable that NASA could. Whitney Merrill, an attorney in Chicago, who has studied copyright, notes that government contractors often retain copyright to their work. In fact, most Hubble Space Telescope pictures are public domain, but not all of them are, she pointed out. That's because astronomers can actually rent out time to use the Hubble and can prepare them. The Association of Universities for Research in Astronomy and the Space Telescope Science Institute claims copyright of all photos it processes, and requires royalties for any photos used commercially.

"[SpaceX] is a great copyright test question," Merrill told me. "If I were a professor teaching copyright, I would put this on the test because it can be argued both ways."

Thank the public domain for these things. Image: BlackMilkClothing

For some clarity, I went to Andrew Rush, an intellectual property space lawyer (they exist!). He says Merrill is probably right.

"SpaceX is not a government agency, unless the contract says otherwise they own the copyright of anything they create," Rush told me. "Just because they're operating on behalf of NASA does not necessarily mean the copyright of their images are owned by NASA or the US government. When SpaceX is operating as a NASA contractor, generally any of the copyrightable stuff they create is subject to copyright protections."

A spokesperson for NASA said that SpaceX uses its own photographers and said she doesn't believe NASA has any clause in the contract that would give NASA the rights to photos taken by onboard cameras (I am currently trying to get a copy of the full contract). SpaceX did not respond to a request for comment.

In the short term, this may not be all that big of a deal. SpaceX is generally invested in the public's perception, and is still at the point where it wants its work out there as much as possible. But copyright issues tend to have ramifications for a very long time.

"I don't think Elon Musk would authorize a copyright lawsuit against a kid who printed it out and put it on a science fair poster," Higgins said. "But in 50 or 70 years, who knows. The way these copyright cases work is, they operate on such a distended timescale that it's hard to know who will own it down the line."

"And, it's a little thing, but if you're working on a creative project and want to use the photos, it's not worth SpaceX's time to reply to you," he added. "The copyright penalties can be up to $150,000 per infringement. It's an expensive mistake to make."

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