Petapixel reports that director of photography, Tom Kucy, added 3D motion to some of the photos from the 8,400 shots taken by Apollo astronauts during trips to the moon. Kucy’s 2-minute film shown above is titled “Ground Control.”
Kucy’s film is a “derivative work.” A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, and paintings from photos. To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and then add new original copyrightable authorship to that work. 17 USC 103(b) explains:
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.
The right to prepare derivative works based upon other copyrighted works is one of the “exclusive rights” of 17 USC 106. To create his derivative work, Kucy used the Apollo photos. So Kucy would have needed permission from the copyright owners of the photos to create his film. But the photos are in the public domain: 17 USC 105 states: “copyright protection under [Title 17] is not available for any work of the United States Government.” A “work of the United States government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties (see the definitions of 17 USC 101). When astronauts, who are employees of the U.S. government, take photos as part of their duty, their photos immediately are in the public domain, not protected by copyright.
Copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Copyright protection does not extend to the preexisting material. As the Copyright Office’s Circular 14 explains:
A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, is also an underlying “work” from which derivative authorship may be added, but the copyright in the derivative work will not extend to the public domain material, and the use of the public domain material in a derivative work will not prevent anyone else from using the same public domain work for another derivative work.
So you may continue to copy, display, distribute, and create derivative works of the Apollo photos. As for Kucy’s derivative work, he gets copyright protection of his new material.Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!