|Note: This page shares the Wikimedia Foundation’s preliminary perspective on a legal issue. This page is not final – if you have additional information, or want to provide a different perspective, please feel free to expand or add to it.
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Images made available on the web by NASA and its affiliates fall into two categories: (1) images made in whole or in part by NASA; and (2) third-party images which NASA or its affiliates have a license to use on their websites. Generally, images created by NASA are not claimed to be covered by copyright. However, where the creation or release of the image involves a party besides NASA, the analysis is complicated and must be done on a case-by-case basis. Third-party images hosted by NASA and its affiliates may be copyrighted, in which case permission must be obtained from the copyright holder prior to use.
Images Created in Whole By NASA
In general, images created by NASA, a U.S. governmental agency, are not claimed to be covered by copyright because federal law removes copyright protection from works of the U.S. government. NASA's official policy clarifies that images created by NASA are not covered by copyright by stating that "NASA still images; audio files; video; and computer files used in the rendition of 3-dimensional models . . . generally are not copyrighted" and “NASA material may be reproduced and distributed without further permission from NASA."
Furthermore, images from specific NASA missions, projects, and collaborations (such as the New Horizons project) are also generally not subject to copyright protection. Such endeavors may have their own webpages for hosting images. And while these mission-specific webpages may have their own image policy statements, these statements usually include a provision indicating adherence to general NASA guidelines for image use and reproduction. Even if a particular mission or project-specific webpage does not include a provision indicating adherence to the general NASA guidelines, its own image use policy may allow unrestricted use of the images. However, even within NASA, exceptions to the general rule of ‘no copyright protection for government works’ do exist, and a thorough analysis of copyright rights requires a careful identification of the organization or individual that created the image (and, if the image is created by an organization that is vested with copyright rights, a careful look at the policies of that organization).
It’s worth noting that, in its official policy statement, NASA grants specific authorization for some uses of its images, such as use for educational or informational purposes. These statements, however, do not appear to be limitations but helpful clarifications. It appears that NASA's guidelines are meant to make it clear that these uses are permissible; they are most likely not meant to be construed as stating that the agency grants a license only for these enumerated uses.
As evidence that no policy statement can override the law that places virtually all works of the federal government in the public domain, one can look to decisions of the courts. The Supreme Court of the United States has considered the issue, as did the Florida Supreme Court, in considering appeals of the Microdecisions, Inc. v. Skinner case. It was a case where the courts determined that the State of Florida cannot simply grant itself a copyright in its own works, because its constitution does not allow it. Even where the state (that is, the executive branch of government, such as a state agency) asserted copyright claims over its work, the courts ruling that the state's work is not subject to copyright, and that such claims are invalid, withstood all appeals. If the State of Florida cannot simply grant itself a copyright in its own works, because its constitution does not allow it, it stands to reason that the United States cannot simply grant itself a copyright in its own works, if its constitution does not allow it. The Copyright Clause does not appear to allow it.
Images Created in Part By NASA
Unfortunately, when an image is created in conjunction with another party, the issue of copyright protection is not as clear-cut. There is no definitive rule for determining whether an image created in conjunction with a third party is subject to copyright protection. Each image will have to be evaluated on its own terms, keeping in mind the following concerns.
While works produced by the U.S. government are not entitled to copyright protections, one U.S. Court of Appeals has ruled that if the government contracts with a third party to create a work, and the work as commissioned is not related to official duties of any government employee, the work will enjoy copyright protection. In these cases, the third party would hold the copyright, but the contract commissioning the work might transfer the copyright to the U.S. government. Because of this, it is possible for works created by or in conjunction with third parties to enjoy copyright protection, but whether the work does, and who holds the copyright, will depend on the specific circumstances of the work. NASA’s contract with the third party may even explicitly remove copyright protection, for example, so the particular circumstances of any given image will have to be investigated.
Restrictions on Use
There are certain things to be mindful of when using NASA images. Most importantly, NASA material may not be used to imply the endorsement by NASA or by any NASA employee of a commercial product, service, or activity. This restriction does not stem from copyright protection in the images, but from other legal doctrines (such as trademark law and right of publicity/privacy) that may apply.
Use of the NASA logo is limited by specific U.S. statutes that protect the identity of the agency. For example, 14 CFR 1221 states that the NASA seal and logo "shall be used exclusively to represent NASA, its programs, projects, functions, activities, or elements."
Furthermore, images created or released in conjunction with third parties may have additional restrictions on their use. For example, the Jet Propulsion Laboratory (JPL) logo cannot be used to imply an endorsement by the JPL or Caltech of any product or service, but the JPL may allow such use in specific cases. As with the NASA restrictions, these requirements stem from trademark law and right of publicity/privacy rather than copyright protections.
Agency Policy Statements and Conflict With Federal Law
It’s worth noting that, in its official policy statement, NASA grants specific authorization for some uses of its images, such as use for educational or informational purposes. These statements, however, do not appear to be limitations but rather helpful clarifications. It appears that NASA's guidelines are meant to make it clear that these uses are permissible; not meant to be construed as stating that the agency grants a license only for these enumerated uses.
In enacting 17 U.S.C. § 105, Congress’ intention was to prevent a government official or employee from being able to restrain anyone from disseminating government works; a form of safeguard against censorship. An agency’s attempt to claim copyright protection in circumvention of § 105 would be an usurpation, exceeding the agency’s delegation of authority from Congress. Therefore, it stands to reason that any such attempt would be struck down by the courts as a violation of federal law.
Images Hosted by NASA
NASA and its affiliates (for example, the JPL), make some third-party images available on their websites. If this material is copyrighted, NASA policy states that they will note the presence of copyright protection. Permission from the copyright holder should be obtained prior to use of such material.
Notice of copyright, however, should not necessarily be conflated with attribution given to parties that contributed to an image. Credit given to a contributing individual or institution may not necessarily mean that the attributed individual or institution also holds a copyright in the image. This determination will have to be made on a case-by-case basis however, and unfortunately NASA’s stated policy is unclear on when copyright, rather than mere credit, is indicated.
Third-party material may be made available by its owners under certain circumstances. For example, the JPL’s use of images policy states, “[s]ome image and video materials on JPL public web sites are owned by organizations other than JPL or NASA. These owners have agreed to make their images and video available for journalistic, educational and personal uses, but restrictions are placed on commercial uses. To obtain permission for commercial use, contact the copyright owner listed in each image caption.” For any given third-party image, the image use policy of the site it appears on should be consulted for the relevant conditions, keeping in mind that any restriction on commercial use imposed by a third party would make the image ineligible for Wikimedia Commons.
- Things are a bit more complicated than this page currently sets out, I'm afraid, when it comes to images that NASA is jointly releasing with other organisations or individuals. E.g. ESA/Hubble images are CC-BY according to http://www.spacetelescope.org/copyright/ and others may be fully copyrighted depending on the partners organisations or individuals. It's not just international partnerships - the JPL image policy at http://www.jpl.nasa.gov/imagepolicy/ also has a note about images that are displayed on the JPL websites but whose copyright is owned by others are restricted to non-commercial use only. Mike Peel (talk) 23:41, 21 April 2012 (UTC)
- The JPL policy IS NOT BINDING ON US where it diverges from our rights under copyright law (e.g. where it falsely claims that prior written approval for any use of the NASA and JPL logos is required by law). It's an established fact sometimes a government agency's policy on the copyright status of its own work is ruled to be invalid by the courts. On the other hand, re. the ESA and JAXA: § 201 (a) says "The authors of a joint work are coowners of copyright in the work."--Elvey (talk) 01:05, 30 May 2013 (UTC)
- You should take into account this discussion—that a credit line on a NASA image is usually just a credit, not a copyright statement. Ruslik (talk) 07:38, 24 April 2012 (UTC)
- Since this is intended as a normal wiki, people should feel free to edit, update, and correct the note. That said, if people find it useful, I can ask a summer intern to dive deeper on the joint release issue. Our summer interns are coming at the end of May, so a more detailed note will not be available until June, but, as I understand, we have no deadlines on this. If that doesn't make sense, feel free to let me know. These notes are a bit of an experiment, and, from the feedback that I have heard from the community, we should strive to get them out more quickly and address the issues more directly. I hope to make this a priority, though, as most of you know, our resources are limited and these notes require quite a bit of time to draft and review. Geoffbrigham (talk) 21:54, 7 May 2012 (UTC)
- I've updated this note to try and clarify some things that were a source of confusion, as well as to try to address the comments above. Pholm (WMF) (talk) 20:55, 28 June 2012 (UTC)
- I've updated this note to reflect that the agency cannot make a legally valid copyright claim on its own work.--Elvey (talk) 07:44, 15 December 2012 (UTC)
- Yes, please
Yes, I think it would be helpful to have a summer intern look closer at this. Thanks. 126.96.36.199 01:41, 30 May 2013 (UTC)
"if people find it useful, I can ask a summer intern to dive deeper on the joint release issue."
- 17 U.S.C. § 105
- Using NASA Imagery and Linking to NASA Web Sites
- The New Horizons project webpage, for example, states that "New Horizons is a NASA mission and adheres to the space agency's guidelines for image use and reproduction." See Using New Horizons Images
- See for example, JPL Image Use Policy
- For ESA’s policy, see the Copyright section of http://www.esa.int/esaCP/SEMNXVZKQAD_index_0.html. For JAXA’s policy, see http://jda.jaxa.jp/en/service.php.
- See Schnapper v. Foley, 667 F.2d 102 (D.C. Cir. 1981)
- See for example http://www.hubblesite.org/about_us/copyright.php, where an organization creating images for NASA under contract disclaims any copyright.
- 14 CFR 1221
- ’’See’’ H.R.Rep.94-1476, 94th Cong. 2d Sess. 59 (1976)
- NASA’s policy states that “material is not protected by copyright unless noted. If copyrighted, permission should be obtained from the copyright owner prior to use.” [emphasis added] Using NASA Imagery and Linking to NASA Web Sites