Elon Musk put SpaceX’s photos in the public domain

So why does Flickr say they’re licensed?

I’m a librarian. I keep an eye on what is going on in the public domain world because I like to see more content shared more widely. This weekend there was one of those only-on-the-internet moments when you wonder “Did that just happen?”

Hey, a set of cool (and recent) space photos is now in the public domain! I zipped over to see SpaceX’s public domain photos, but they weren’t public domain. Why?

In the course of reporting on SpaceX’s recent launches, Jason Koebler wondered in February who owned the rights to their photos? NASA photos, like most photos from other federal agencies, are public domain, free for anyone to use for any reason. SpaceX’s weren’t. Did they legally even have to be?

Digital content that gets shared on platforms like Flickr often does not have a clear path to the public domain. The White House got a Flickr account in 2009 and had been posting photos with a Creative Commons Attribution license, a pretty open license but not public domain. After being taken to task for this by the EFF and the Creative Commons Foundation, Flickr created a new copyright indicator for the White House and other U.S. government agency accounts labeled “US Government Works.” The option to search for these items is still pretty buried in the bowels of the Advanced Search page, but it’s there.

Your tax dollars at work from the National Institute of Standards and Technology.

Other governmental organizations have tried doing the sharing thing in various ways. The Smithsonian Institution briefly had a website called Smithsonian Images, since discontinued, which caught some flack from Carl Malamud and PublicResource.org for insisting on credit and/or (hefty) payment for the use of content that was most likely in the public domain. Public Resource made digital copies of the images, put them online and waited for a cease and desist letter that never came. The Smithsonian now has an attractive Commons-like front page, but their Rights and Reproduction terms still overreach, strongly implying that even items with “no known copyright restrictions” may only be used non-commercially with proper attribution.

Dirigible and dirigible tender (1925)

SpaceX originally put their 100+ photos into a Flickr account with a Creative Commons attribution license (after trying and discarding a license that required non-commercial use). Vice reported on it. Flickr blogged about it. Then a Twitter user asked SpaceX founder Elon Musk

and Musk replied

Which is great. You’re a well-off person, why not engender good will by giving some of your content away to an appreciative public? It’s good PR with few downsides. But how does that work exactly? More to the point why aren’t the photos labeled public domain now, two days later? It’s just changing a setting, right? Not quite.

Flickr has an option, The Commons, that cultural heritage organizations can use. It’s been around since 2008. Organizations who sign up and agree to a list of rules including ones like

“You’ll need to tend to your account and love it like it’s a newborn lamb.”

can upload photos with a special “No known copyright restrictions” designation. It’s a great place to get evocative images that can be used for anything.

George Washington’s teeth

However, if you’re a person who has already uploaded images to Flickr but want to visibly put them in the public domain, you’ll have your work cut out for you. This is by design.

Back in 2005 when Flickr had been newly acquired by Yahoo and its creators were still commenting in its help forums, Stewart Butterfield (of Slack fame) said

the reasons we don’t have a PD option: (i) Unlike CC licenses, you can’t take PD back — once it is done, it is done. I spec’d out a three stage confirmation (including typing out that you understand what it means) but this was seemed like too much and we didn’t want the support hassle. People are free to use the description field to specify their PD desires. (ii) There are liabilities that we don’t want to take on if we allow people to claim something is public domain without actual checking the chain of title — if they don’t own it in the first place, we can get in trouble. (This is also true of CC images, but at least that can be changed after the fact and there is less of a chance of the image just “escaping” in the wild.)

This reasoning is also used to critique Creative Commons licensing: legally rights will revert to the least-restrictive license an item has ever had, which confuses users and could create complex liabilities. And yet, Flickr managed to work out the CC licenses which they use to this day. The licenses are quite popular.

Flickr user Alan Cleaver’s Great Granny Pitham. CC by 2.0

Flickr never created a public domain option for users. The topic still comes up in the Help Forums. The newest iteration of Flickr’s “search experience” does make it slightly easier to find public domain images on the site. A user who wants to put their photos in the public domain, free for all to use, has three options

  1. Be the White House or other government agency and have a special category created for you. Talk to Yahoo Government Affairs if you fit this category.
  2. Register for The Commons (different from Creative Commons), an option currently only available to cultural heritage institutions.
  3. Use the least restrictive license available and put a note on your profile that says “My stuff is really in the public domain.”

Wikimedia Commons has a number of bots that regularly ingest and publish photos from Flickr that have free licenses, adding them to a platform where the majority of their content is unlicensed public domain content.

I can see my house from here. No seriously this is my house.

And as for SpaceX? They’ll have to either do the paperwork to become part of Flickr Commons or find another place to host their images to put them truly in the public domain.

For now they seem to be using the “add a note in your profile” hack that’s been the only option for general Flickr users since 2005. People who want to use the photos will have to decide between trusting Musk’s tweet or the license that is on the photos. In the meantime, the current license does allow the use of their photos here.

(update: Flickr now allows public domain and CC0 designations.)

(more links to PD content below the splashdown)

If you enjoy daydreaming about the public domain, may I suggest reading the Public Domain Review?

Other fine public domain collections