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Space: The Final (Copyright) Frontier

March 31, 2015

Space: The Final (Copyright) Frontier

March 31, 2015

Back to Fish's Trademark and Copyright Blog


In the past, photos of space, or photos of the earth from space, have always been available for everyone to use. That is primarily a result of the fact that the only people going to space and taking pictures were employees of the federal government (in the case of the US, NASA).  Since the federal government cannot hold a copyright, these pictures have always been in the public domain and available to use without restriction.

As entities other than the government send rockets into space, it raises the question as to whether, as space becomes more accessible to the masses, photos of space will become less so. This issue recently came to a head when SpaceX, one of the companies at the forefront of private space exploration, published a number of photos from a recent mission, funded by NASA, to its website and to Flickr. See:

By all accounts, even though the mission was funded by NASA, because it was SpaceX that took the photos, SpaceX is the owner of the copyright in the photos.  However, before the debate about whether use of these photos would be restricted could even get underway, Elon Musk- CEO and CTO of SpaceX – announced via Twitter that the photos released by SpaceX would be placed into the public domain.

While this should have settled the issue, some still question whether Musk is even allowed to do this. Some copyright experts say that once a work is copyrighted, it can’t be placed into the public domain.  Others question why, if Musk intended to put the works into the public domain, they are still listed as being offered under a Creative Commons license on Flickr. The simple answer is that, by design, Flickr does not offer the option of designating works as being in the public domain other than to government agencies or cultural heritage institutions. The only option that a corporation like SpaceX has, at least through Flickr, is to adopt the least restrictive Creative Commons license (Attribution 2.0 Generic (CC BY 2.0)), and then designate in the notes on its profile that it intends for the works to be in the public domain. That is what SpaceX has done.  See:

There are still those who question whether this is enough. But it is clear that Musk’s intent was to make the SpaceX photos available to everyone without restriction, and it would be unlikely that Musk could sustain an infringement claim under these circumstances. One wonders what Musk’s competitors would do when faced with the same situation. As more and more private companies travel to space it is possible that the public’s access to space photos will diminish. But, until then, it appears that the use of space photos, for now, is business as usual.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes and is not intended to be and should not be taken as legal advice.

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One response to “Space: The Final (Copyright) Frontier”

  1. Bruce Erickson says:

    Hi Michelle,

    Interesting blog, particularly the reference regarding the uncertainty of something becoming public domain through declaration. Yes, the CC license does handle a “sort of” or workable equivalent, but in my line of work (non-profit) I frequently come across sites that declare their newly created work to be PD. I’ve often wondered the legal rational for such a statement and if it would hold up in litigation.

    Without legal precedent, could their work be reaquired or reclaimed as under copyright at a later time by the author or by their heirs and assigns? As a non-attorney it begs the question, has this ever been litigated or is there some type of case law on this?

    I don’t know that there is an answer to the question at this point, but thank you for noting the public domain principle involved as I’ve seen very little written on this. Your blog will be tagged for my future reference.


    (fyi – I saw this blog on Lexology)

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