Why Photos of Space Should Belong to Everyone

NASA has long released its photos to the public domain. Private spaceflight challenges that legacy of openness.

You can’t use this photo of the Falcon 9’s sunset launch. (SpaceX)

In the early evening of February 11, a Falcon 9 rocket, owned and operated by Elon Musk’s private spaceflight company SpaceX, applied 1.3 million pounds of thrust to its launch pad in Cape Canaveral, Florida. As the sun set behind it and the Atlantic Ocean glowed amber, that fire took it into the sky. It would now attempt to travel farther into outer space than any SpaceX vehicle had gone before.

The launch went perfectly, and after about half an hour, the Falcon 9 had dispatched the Deep Space Climate Observatory (DSCOVR) on its way toward the outer atmosphere.

It was SpaceX’s first deep-space mission. And at its farthest point, right as DSCOVR peeled away, a camera on the side of the Falcon 9 looked back over its fuel nozzle and took this picture:


That’s Australia, right there, floating on the blue marble of Earth. It’s a historic image, captured by one of the first privately owned spacecraft to penetrate the upper reaches of the atmosphere.

It’s also unlike almost any other image taken in the history of American spaceflight. Unlike photos captured by NASA, it is not in the public domain.

What does that mean? Unlike this photo or this photo or this photo, you are not supposed to take this image of our home-world circa 2015 and put it on an album cover or hang it on your wall or order yourself a T-shirt with it or publish it on a magazine cover.

This is a delight long extended to consumers of NASA imagery. Because cultural works produced by the government are publicly funded, U.S. copyright law takes the view that they are already publicly owned. Thus, you can do anything you want with NASA photos—you own them.

As Mike Masnick writes at Techdirt, other space agencies do not take the same approach. The European Space Agency, for instance, has taken images out of circulation by appealing to copyright law. It is Europe’s loss. The American approach of public works becoming public property has reaped riches for the commonweal. NASA pictures have given rise to social movements, art projects, and developments in intellectual history. Landsat, a U.S. program that releases pictures of Earth from space, was estimated to generate almost $1.8 billion for U.S. citizens in the year 2011 alone.

And they do more than that. As Parker Higgins, an activist at the Electronic Frontier Foundation who first highlighted the discrepancy, writes, pictures of space get kids interested in science. Space photographs, whether of our home planet or home galaxy, just look cool. They reveal the massive structures that undergird every moment of our lives.

They say, and the picture above says: You inhabit a planet that orbits around a star, and you have for every moment of your life.

Were SpaceX just in the game to make money, I would excuse their private photos. But SpaceX is essentially concerned with something broader—something just as crucial to the common good. Musk has said so himself. Last spring, he told an audience: “The reason SpaceX was created was to accelerate development of rocket technology, all for the goal of establishing a self-sustaining, permanent base on Mars.”

Public photos of space, to be used freely, would further that precious goal of human spaceflight. And SpaceX seems interested in expanding copyright on its photos. “We’re actually looking at this right now and will have more to say soon,” a SpaceX spokesman told me.

This is an important moment in the history of photographic copyright, and SpaceX should seize it. SpaceX should take the untraditional and pioneering strategy of releasing some or all of its photographs of rocket launches, landings, and spaceflight to the public domain by licensing them under CC-0.

This would permit a level of experimentation and proliferation unmatched by any other approach. (One of the most widely distributed photographs in history, after all, is The Blue Marble—a public-domain space photo.) If open-sourced, SpaceX photos could appear in textbooks and on T-shirts. They could be used for art and fashion.

And the company would set a bracing precedent: that pictures captured in spaceflight should be free, that artifacts of a crowning human technological achievement should belong to all humans. Such a precedent would protect and bolster the company’s mission even if the company itself does not live to see its objective through.

Would donating the photos to the public domain be the safe thing to do? Of course not. If SpaceX wants to cling to every piece of sellable content it has, it should not release the photos. Someday, maybe, it will make a T-shirt with the picture above on it. And some folks will buy the T-shirt, and it will make a little money.

There is a middle ground here, too, which the company could also take. SpaceX could release its photos under a different Creative Commons license, specifically CC-BY-NC, and welcome repurposing while prohibiting commercial reuse. Such a license would keep others from profiting off SpaceX photos while still allowing amateur artists to play with them—providing, of course, they never sold their work. But how fun is that? And it would also prevent the pictures from easily appearing in anything made for-profit—including textbooks and classroom posters.

But SpaceX is not a safe or conservative company, and it should go further than that. It’s in space travel, after all, the business where assistant vice presidents of press conferences shake their heads and admit “space is hard” after their enormous, million-dollar machines explode on the tarmac for no obvious reason. SpaceX is an audacious company on an audacious mission. It should be as audacious, as optimistic, in its view of culture.

Besides, the company will never make millions of its intellectual property. Most of its revenue will flow from government and private contracts for actual, you know, space travel, and not from hordes of IP a la Disney—unless Musk has secret plans to develop a new Saturday morning cartoon, Mickey the Friendly Neighborhood Low-Resolution Earth Photograph. (The Creative Commons approach would also let SpaceX retain trademark protections on its brands and logo, which would prevent other companies from borrowing its imprimatur and making it look like it approves of products which it does not.)

Last year, another groundbreaking company of Elon Musk’s went open-source with its intellectual property. Tesla Motors announced that it would not “initiate patent lawsuits against anyone who, in good faith, wants to use our technology”—that is, that it was essentially open-sourcing its patents.

“Tesla Motors was created to accelerate the advent of sustainable transport,” Musk wrote. “If we clear a path to the creation of compelling electric vehicles, but then lay intellectual property landmines behind us to inhibit others, we are acting in a manner contrary to that goal.”

SpaceX, like Tesla, will compete on features. The U.S. government will not choose its rockets for launch missions because one company has prettier pictures of space. But humans of all ages may decide to pursue science, or support it, because they have one brain-melting wow moment. SpaceX should try to provoke as many of those as possible.