By: Elizabeth O’Brien

On March 21, 2015, Elon Musk, CEO of SpaceX, announced that photos showcasing the company’s recent rocket launch were available on Flickr.[1] Though this act showed a great deal of good will, Musk caused some copyright controversy in the process. It was unclear to Internet users whether or not these images were in the public domain.[2] At the time, Flickr had limited options to upload images and required a minimum level of copyright protection. However, after receiving pressure from the Internet community; Flickr created new options for its users to identify how much protection exists, if any.[3] Flikr has now made it easy for users to dedicate works to the public domain and build on each other’s pictorial creativity.

 

LEGISLATIVE HISTORY AND BACKGROUND

The Copyright Act of 1976 extended federal copyright protection to all “original works of authorship fixed in any tangible medium of expression,” including pictorial, graphic, and sculptural works.[4] Thus, the author is given exclusive rights to reproduce and distribute copies of the work; to create new, derivative works; and to perform and display the work, for a period of time.[5] Others cannot reuse the copyrighted work without authorization.[6]

When a work is not protected by copyright; for example, if the copyright term expires, then the information becomes available in the public domain.[7] Once in the public domain, there is no need for others to obtain authorization, to reuse the work.[8] The work effectively becomes “public property.”[9]

The public domain provides three major benefits. First, it lowers the cost of creating new works because the information in the public domain provides authors with lots of “raw materials.”[10] For example, the popular musical “West Side Story” was actually based on Shakespeare’s “Romeo and Juliet.”[11] Second, the public domain promotes artistic freedom because there are no restrictions on how others can use the original work.[12]

Lastly, the public domain increases market competition.[13] When a work is in the public domain, others do not need to obtain a license to copy or distribute the work.[14] This freedom lowers distribution costs for publishing companies. Moreover, different companies can set different prices, for the same copy. This variability generates market competition and ultimately, drives down prices for consumers.[15]

 

LICENSING SCHEMES

If the copyright term has not yet expired, it can be difficult for the owner to dedicate his/her work to the public domain. Dedication is a complex, legal process that varies among jurisdictions.[16]

A non-profit organization, Creative Commons, has created alternative licensing schemes to work alongside federal copyright law.[17] A Creative Commons License allows the owner to change the copyright restrictions from “all rights reserved” to “some rights reserved.”[18]  The owner can set a range of restrictions based on future editing, commercial use, and derivative works.[19]

The Creative Commons License allows other people to use the work, e.g., in non-commercial ways, without worrying about infringement.[20]  This alternative is extremely appealing to Internet users, sharing information in the digital age.[21]

 

SPACEX ON FLICKR

Flickr is an online, photo-sharing platform which allows its users to upload, share, and view images.[22] Until recently, Flikr only provided three copyright-indicator options for users uploading images: U.S. Government Works, The Commons, and Creative Commons License.[23]

Flickr reserves the “U.S. Government Works” indicator for the White House and other governmental agencies. By law, government works are ineligible for copyright protection.[24] Therefore, any images uploaded by the government agency, National Aeronautics and Space Administration (NASA,) are in the public domain. This indication means that anyone can use the NASA images, for any purpose.[25]

The indicator for “The Commons” is not related to the Creative Commons organization; instead, this indicator is used by cultural heritage organizations.[26]  Images uploaded by these registered, and approved, organizations have “no known copyright restrictions.”[27]

If the account is non-governmental, or non-cultural, Flickr will indicate if the author has a Creative Commons License with “some” restrictions.[28]  This default option establishes a minimum level of copyright protection on users’ images. Flickr has been hesitant to allow users to place images “in the public domain” because of the finality.[29]  Once a work is available in the public domain, it cannot be undone. There are also liability issues associated with proving the chain of title.[30]

In February 2015, SpaceX operated a mission for NASA; the company took pictures of its rocket launch and of the Earth, from space.[31]  Unlike NASA, SpaceX is a private company. Therefore, the SpaceX images were not in the public domain.[32]

On March 21, 2015, Musk decided to share the SpaceX images on Flickr, under a Creative Commons License.[33] There was no option available on Flickr to put the images in the public domain.[34]  With Musk’s Creative Commons License, there were restrictions for attribution and non-commercial use, meaning: “others [can] remix, tweak, and build upon [the] work non-commercially, and although their new works must also acknowledge [the author] and be non-commercial, they don’t have to license their derivative works on the same terms.”[35]

Many viewers complained about the restrictions and Flickr quickly responded. On March 30, 2015, Flickr announced two new copyright indicators: Public Domain and Creative Commons-Zero.[36]  The copyright indicators can be changed under account settings.[37]

The Public Domain mark can be used for images already available, worldwide, without restrictions.[38]  The Creative Commons-Zero (CC0) waiver will remove any restrictions, including attribution. For example, when there are different copyright or database rights in different jurisdictions. The CC0 waiver means “no rights reserved.”[39]

Since Flickr has added the new copyright-indicator options, SpaceX has chosen to dedicate all of its images to the public domain.[40] Now, anyone can use the SpaceX images, for any purpose.[41]

Flickr is the largest online, photo-sharing platform for licensed images.[42] Now, internet-users have more licensing choices, making it easier to share, reuse, and remix images. This enablement encourages the creation of new works and satisfies the underlying purpose of copyright law.[43]

 


 

[1] Elon Musk, TWITTER (Apr. 17, 2015), https://twitter.com/elonmusk/status/579197717970206720.

[2] See Jessamyn West, Elon Musk put SpaceX’s photos in the public domain: So why does Flickr say they’re licensed?, MEDIUM (Mar. 23, 2015), https://medium.com/message/why-spacex-s-photos-maybe-aren-t-public-domain-5c7f156572f5.

[3] See id.

[4] 17 U.S.C. §§ 101-102.

[5] 17 U.S.C. § 106.

[6] See 17 U.S.C. § 106.

[7] See, e.g., Niagra Mohawk Power Co. v. U.S. Department of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999).

[8] Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F. Supp. 1523, 1536 (S.D.N.Y. 1985).

[9] Id.

[10] “The Public Domain Manifesto,” available at http://publicdomainmanifesto.org/ (last visited Apr. 17, 2015).

[11] See Lethem, “The Ecstasy of Influence,” Harper’s Magazine, pp. 59-71 (Feb. 2007).

[12] Tufenkian Import/Export v. Einstein Moomjy, 338 F.3d 127, 132 (2d Cir. 2003).

[13] Heald, “Property Rights and the Efficient Exploitation of Copyrighted Works: An Empirical Analysis of Public Domain and Copyrighted Fiction Bestseller,” 92 Minn. L. Rev. 1031, 1052 (2008).

[14] See 17 U.S.C. § 106.

[15] Heald, supra at 1035.

[16] About, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about.

[17] About, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about.

[18] About, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about.

[19] See About the Licenses, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/licenses/.

[20] About, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about.

[21] See About the Licenses, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/licenses/.

[22] Rajiv Vaidyanathan, Flickr now offers Public Domain and CC0 designations, FLICKR BLOG (Mar. 30, 2015), http://blog.flickr.net/en/2015/03/30/flickr-now-offers-public-domain-and-cc0-designations/.

[23] See West, supra.

[24] See 17 U.S.C. § 102.

[25] See 17 U.S.C. § 106.

[26] See West, supra.

[27] See West, supra.

[28] See West, supra.

[29] Vaidyanathan, supra.

[30] Vaidyanathan, supra.

[31] See West, supra.

[32] See West, supra.

[33] Elon Musk, TWITTER (Apr. 17, 2015), https://twitter.com/elonmusk/status/579197717970206720.

[34] Vaidyanathan, supra.

[35] See About the Licenses, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/licenses/.

[36] Vaidyanathan, supra.

[37] Vaidyanathan, supra.

[38] About CC0 – “No Rights Reserved”, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about/cc0.

[39] About CC0 – “No Rights Reserved”, CREATIVE COMMONS (Apr. 17, 2015), http://creativecommons.org/about/cc0.

[40] SpaceX Photos, FLICKR (Apr. 17, 2015), https://www.flickr.com/photos/spacexphotos.

[41] See 17 U.S.C. § 106.

[42] Vaidyanathan, supra.

[43] See 17 U.S.C. § 101.