Elon Musk may not be technically allowed to put his photos into the "public domain."
This weekend, Elon Musk, prompted by a tweeter, announced that photos released by SpaceX would be placed into the public domain, where they can be used by anyone wishing to do anything with them. Problem is, it's not exactly clear Musk is actually allowed to do that.
SpaceX licensing 105 photos, with more to come, under a Creative Commons BY 2.0 license is generous and a nice move for those hoping space photos would remain as democratic as they always have been under NASA. But copyright law vagueness makes it hard to say whether or not they are technically "public domain," in which they can be used by anyone for any purpose, without attribution.
So consider this more of a dive into semantics and legal precedents for copyright nerds than a critique of which license SpaceX decided on: As Parker Higgins of the Electronic Frontier Foundation, who has become my go-to for space copyright issues, told me, SpaceX shouldn't be tasked with worrying about the intricacies of copyright law; we'll worry about it instead (to be fair, Jessamyn West over at The Message has also considered the question).
As I mentioned, SpaceX actually released its photos with the CC BY 2.0 license, which is not the least restrictive Creative Commons license out there. The CC0 waiver is the least restrictive designation a copyright holder can give to his or her work—it's essentially a "no rights reserved" waiver that places works "as completely as possible in the public domain, so that others may freely build upon, enhance and reuse the works for any purposes without restriction under copyright or database law," according to Creative Commons.
The CC BY 2.0 license, on the other hand, still requires attribution. That means you can use a SpaceX photo on your candy bar wrapper, but you have to say somewhere on that wrapper that the photo was taken by SpaceX (that's a free idea for you).
"The problem with copyright is you get it as soon as you have original expression, and it can be really hard to get rid of it"
"If someone used one of those SpaceX photos and didn't give them attribution as the source, they would be in violation of the license terms," said Peter Hirtle, who runs Cornell University's Copyright Information Center and is a fellow at Harvard's Berkman Center for Internet and Society. "Elon Musk could theoretically sue that person for copyright infringement because they didn't follow the terms of the license."
So, it'd seem to be an open-and-shut case. The photos are not in the public domain, they're just released with very few restrictions.
But it gets more complicated! Musk tweeted that the photos are now in the public domain. A Circuit Court in the Ninth District (that's California and some other western states, where Musk lives and where SpaceX is headquartered) decided in 1998 that a rights holder can indeed place his or her work into the public domain.
"It is well settled that rights gained under the Copyright Act may be abandoned. But abandonment of a right must be manifested by some overt act indicating an intention to abandon that right," the court held.
A tweet would seem to be an "overt act." But the plot thickens, because in the world of copyright, of course it does.
Many copyright experts believe that is not technically possible to place your work into the public domain. The term "public domain" never actually appears in the Copyright Act of 1976, the law that gives us much of the confusing mumbo-jumbo that now makes up the very confusing copyright situation in the US.
"There are differing opinions: Some say the only way something can enter the public domain is by never having had copyright or by having the copyright expire," Hirtle said. "One of the problems with copyright is you get it as soon as you have original expression, and it can be really hard to get rid of it."
In other words, some people believe that works can only passively enter the public domain long after its copyright holder dies. In fact, this is the tack that the US Copyright Office takes. You can officially "abandon" your copyright with the government, but even the office doesn't know if that means it's in the "public domain."
"The Copyright Office will record the abandonment of copyright, but notes in the latest issue of its Compendium that it does so 'without offering any opinion as to the legal effect of the document,'" Hirtle said.
"It's really messy, there is no legal standard"
Creative Commons also writes that using a CC0 waiver doesn't necessarily place it into the public domain.
"Please don't take the zero in the name 'CC0' literally—no legal instrument can ever eliminate all copyright interests in a work in every jurisdiction," Creative Commons wrote. "The laws of some jurisdictions don't allow authors and copyright owners to waive all of their own rights, such as moral rights. When the waiver doesn't work for any reason CC0 acts as a free public license replicating much of intended effect of the waiver."
Musk didn't use a CC0 waiver, although he did make an "overt act" as referenced by the Ninth Circuit. But there is one more layer of complexity, Hirtle said. As he mentioned, you can abandon your copyright with the US Copyright Office, but when you grant a copyright to someone else (or, "the public" in this case), you reserve the right to eventually take back your copyright.
"One of the interesting questions with that is, you're allowed after 35 years to terminate any grant you have made and take your copyright back," he said. "It's really messy, there is no legal standard."
In that sense, registering as a Creative Commons license is, in fact, better. The CC BY 2.0 license is an irrevocable one, meaning Musk and SpaceX can't ever change those photos back to a more restricted license. And Musk's tweet may hold some legal muster. Hirtle mentioned that someone who didn't attribute a SpaceX photo to the company could be held liable for copyright infringement; but Musk's tweet would theoretically provide some legal cover.
"The fact he tweeted like that may not actually put the photos in the public domain, but I don't think he'd be able to sit down and sue someone who used them," Hirtle said. "The court could say, 'You announced they are in the public domain.' Even though they may not technically be in the public domain, they effectively are."
I suspect that's enough for most people.