Wikilegal/Copyright Enforceability on NASA Contractor’s Works

Introduction

Typically, we assume pictures produced by NASA are not under copyright protection, and we can certainly upload it to Wiki Commons or other Wiki Projects without gaining NASA’s permission due to the Copyright law’s exemption to Government work. Things become more complicated when third parties get involved that NASA hired a contractor like SpaceX to take the photos of Space Missions, and NASA attains the copyright from those contractors. Since U.S. Copyright law does not forbid the government to hold or own copyrights that are transferred to it, there are numerous legal ways for the U.S. government to keep copyright in some pictures. Thus, this article will discuss two issues, (1) are works by NASA contractors counted as the government works in the public domain, or do they have copyright protection? (2) If NASA contractors have copyright protection, what is the status of that copyright? In particular: who owns it, how can it be enforced (if at all), and what is its duration?

U.S. Copyright Law

Section 105 of the United States Copyright Act sets out that copyright protection is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. Thus, it does not bar copyright in works commissioned by the federal government from independent contractors.

In terms of the ownership of works made for hire, the employer or other person for whom the work was prepared is considered the author, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the copyrights. Apart from initial ownership, a work made for hire meaning the employer or other person for whom the work was prepared is considered the author for purposes of this title.

Under Section 101 of the United States Copyright Act, there are two types of works considered "works made for hire": (i) works prepared by an employee within the scope of their employment, or (ii) some works specially commissioned if the client and the creator expressly agree in writing that the work will be considered a work made for hire. In Community for Creative Non-Violence v. Reid (SCOTUS, 1989), the Supreme Court identified four factors to determine whether there is an employment relationship in place: 1) Right to Control; 2) Actual Control; 3) Common Law Agency; 4) Status and conduct of the employer.

For the works made by an independent contractor, a work should specially order or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

NASA’s Copyright Policy and Contractor Policy

People can typically freely use NASA’s image for non-commercial use. Under NASA Image Use Policy, content such as images, videos, audio on NASA’s website are generally not copyrighted and may be used for educational or informational purposes without needing explicit permission. Its official Media Usage Guidelines further detailed the content copyright policy that NASA material is not protected by copyright unless noted. If copyrighted, permission should be obtained from the copyright owner before use. The copyright owner could be the contractor hired by a partner corporation with NASA, and they are supervised by the company that hired them, not NASA. Based on NASA’s reference to intellectual property and data rights, “the clauses do not ALTer the common law ability of the participant to assert copyright in its works of authorship created under the agreement, but the participant is required to grant NASA a Government-purpose license in the copyrighted material.”

Possible Four Results

Although NASA is a federal-funded agency of the United States, not all works published by NASA are in the public domain. Here are four possible results for NASA to attain copyright on certain works.

Works made for hire by NASA as NASA’s employee

Section 105 of the United States Copyright Act sets out that copyright protection is not available for any work of the United States Government. Works made by NASA’s employees are not under copyright protection because NASA, as a Federal Agency, is the copyright holder of the works produced by its employee within the scope of the employer-employee relationship. Works made for hire by NASA as NASA’s employees are in the public domain.

Works made for hire by NASA as an independent contractor

As Section 101 of the Copyright Act (Title 17 of the U.S. Code) defines a “work made for hire” in second parts that a work specially ordered or commissioned for use as in nine categories and NASA and independent contractor expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. If it is considered as works made for hire, those works are not under copyright protection because NASA, as a Federal Agency, is the author of the works made for hire. If an independent contractor does not meet the doctrinal requirement, it goes to the fourth category.

Works made for hire by NASA’s partner corporation (NASA’s current primary approach)

If NASA cooperates with a third party partner company such as SpaceX to fulfill the Space Mission or tasks, and the copyright of work produced by employees of a third-party partner company belongs to a third party partner company if the work was made within the scope of the employment. The third-party partner company can assign this work’s copyright to NASA within the term of copyright protection. We still need to verify the contract between NASA and its partner corporation to determine the exact scenario as to work for hire provision.

There are three scenarios when it comes to works related to NASA’s partner corporation. Depending on the exact agreements they execute, if the nature of the work is defined as work made for hire from the beginning is employee-employer or independent contractor relationship, the work will not be protected by copyright law because NASA is the original party who hired someone to create the work regardless how long the chain goes because NASA is treated as the original author. For instance, NASA contracted with SpaceX to fulfill a photo shooting task in a rocket launching event, and SpaceX hired someone to do this job, the product of the work will not be protected by copyright law since NASA is deemed as the original author.

Second, if the work belongs to the original independent author, such as the photographer, and the work is not derived from the work made for hire relationship between the partner corporation and the author. This scenario is the same as the fourth category that the term for copyright protection is for the life of the author plus 70 years.

The last scenario is the work originally belongs to a partner corporation, such as SpaceX’s employee took a photo of the Space Mission before the contract between NASA. SpaceX can assign the work’s copyright to NASA and the term of copyright protection of a work made for hire is 95 years from the date of publication or 120 years from the date of creation, whichever expires first.

Works solely made by an individual then transferring copyright to NASA

NASA can obtain copyright of work via the assignment of copyrights from the author who possesses the initial ownership of copyright. The term for copyright protection is for the life of the author plus 70 years.