Use Public Domain Spaceman Pic As Album Cover, Get Sued

In what could be a frivolous lawsuit that goes nowhere, but may make musical artists a little gun shy about pictures they co-opt onto album covers, a former NASA astronaut is suing Dido over her use of an iconic 1984 photo of him doing his spaceman thing for her album Safe Trip Home.

Bloomberg reports the astronaut wants the ever-popular “unspecified damages” and is also going after Sony Music Entertainment and Getty Images.

The astronaut doesn’t own the copyright for the picture, but says the album cover use infringes on his persona.

We’ll keep an eye on this one and let you know whether or not old photos of you doing amazing stuff in outer space are up for grabs for album usage.

Dido Sued by Astronaut for Using Space Flight Picture [Bloomberg via Slashdot]

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  1. HalOfBorg says:

    So – his persona is a space suit? I can’t see who’s inside it.

    • Rectilinear Propagation says:

      Seriously, I might have had some sympathy for the astronaut if you could actually tell who was in the suit. How can it infringe on his persona if we can’t see his person?

      • TechnicallySpeaking says:

        Government workers on official business. Public domain. Case effing closed.

        • Tim says:

          Not quite. He’s not suing for copyright infringement. Essentially, he’s admitting that it’s in the public domain, but saying that it’s infringing on his persona. Still seems like he doesn’t have a case, but I just wanted to point that out.

          • TechnicallySpeaking says:

            Yeah, point taken. Still seems stupid, but so was my comment, in its own sweet way.

          • dolemite says:

            If you have to look someone up in obscure facts, then their persona isn’t really in danger. “Let me google “Guy in spacesuit that is far away”…might bring up this guy.

            • millsapian87 says:

              Reminds me of my favorite line from “Gilmore Girls”.

              Luke is playing golf with Richard. Conversation turns to books. Richard asks what authors Luke has read lately. Luke panics, blurts “Dick!” (meaning Philip K. Dick). Richard doesn’t know who that is; Luke can’t explain.

              Richard says, “I’ll google ‘dick’ and see what comes up.”

            • howie_in_az says:

              If you follow NASA or know about the space program you know who it is. I did, anyway, but I geek out on that kind of stuff.

    • Rocket says:

      According to the article, “McCandless’ Feb. 7, 1984, flight remains the only occasion on which the manned maneuvering unit has been flown to such a significant distance from a shuttle and allowed such photographs to be taken”. So according to him, there is no way that picture is of someone else.

      • roothorick says:

        Even so, the Manned Maneuvering Unit was designed and built by NASA, and completely and totally obscures the person inside. You might as well claim that a photo of a box you just happened to be in infringes on your persona. If anyone, NASA itself may have a claim (I highly doubt it), and they probably either don’t care, or welcome the publicity.

  2. BeyondtheTech says:

    Seriously, any Photoshop artist can recreate that and be done with this stupid lawsuit.

  3. There's room to move as a fry cook says:

    I haven’t bought recorded music in years – not since the LP days when cover art was large enough to be enjoyed and examined in detail. Are they still called “albums” & “album covers”?

    • humphrmi says:
      • Rocket says:

        Audiophile here. Vinyl sounds better than CDs.

        • spazztastic says:

          Audiophile is just another word for sucker.

        • shepd says:

          Vinyl only sounds better if you are a pregnant teenager (Seriously, in that case you have much better high pitched hearing and vinyl can reproduce sound outside of the normal hearing range). Other than that, no, it doesn’t.

          • RxDude says:

            Good vinyl sounds better than CD. Damaged vinyl, not necessarily. Some of my vinyl recorded on a PC then burned to CD sounds better than the manufactured CD.

            • BBBB says:

              “Good vinyl sounds better than CD. Damaged vinyl, not necessarily. Some of my vinyl recorded on a PC then burned to CD sounds better than the manufactured CD.”

              One problem with the comparison is there is a different mastering process involved. In the early days of digital recording media you had people experienced in vinyl mastering working on CDs. The CD industry only existed for a few years while the vinyl mastering process had many decades of development.

              Wendy Carlos (Switched-On Bach (1968)) describes in an interview where she remastered on of the cuts from an analog album for CD and then played both the LP and the CD for a blind test for some audiophiles. They all picked the CD as better.

              She also states that she is not going to remaster all her old albums because doing that good a job takes too much time and she would rather work on new projects.

              • mistersmith says:

                I think you’re right…the real issue isn’t vinyl vs. CD/digital, but the traditional vs. modern styles of mixing records.

                Back in the day, producers cared about dynamics. Soft parts were soft, loud parts were loud, and there was lots of headroom for these dynamics to play out. Today, all the frequencies are jacked up to the very limits of the technology, and while listeners who don’t really listen seem to think it’s great, “audiophiles” and musicians and people that pay attention to the music have noticed a significant shift in a bad direction. Check this article, scroll down to “criticism”: http://en.wikipedia.org/wiki/Loudness_war

                What your example shows is that, properly mastered, a CD will outperform a record. And scientifically, that’s true. But the reason audiophiles go back to vinyl is those recordings are usually mixed much better, avoiding the loudness issue, either because a) they’re old or b) anyone releasing on vinyl today probably cares about the end result. And when you’re a trained or careful listener, it means everything.

            • shepd says:

              I’d love to know how, since the frequency range of CDs perfectly reproduces all frequencies a normal human can hear. Perhaps it’s because it’s 16-bits, but I question (as in need proof) if a record played more than even once with a stylus could provide that level of resolution.

        • TheGreySpectre says:

          And DVD’s sound better then vinyl, what’s your point?

    • tomok97 says:

      I still say 3 o’clock even though I got the time from my cell phone. So I think we can stick with “album covers”. :)

    • GMFish says:

      Are they still called “albums”

      An album is a collection of art, e.g., a photo album. So a collection of music is still an album even if it is not digitally recorded on plastic or etched on vinyl.

      • tsackett says:

        “Album” was already an anachronism in the age of vinyl. The predecessor to the vinyl record, the 78rpm disc, could only hold about five minutes of audio per side. Music publishers packaged them in actual albums: book-like folders with pages that each hold one disc. When the format for the music changed to the long-playing vinyl record, the term “album” persisted for a collection of music.

    • KeithIrwin says:

      Going to mp3s actually sometimes means cover art which is rendered as high-resolution pdfs (although unfortunately, not usually). As such, you can sometimes appreciate the album art quite a bit. For instance, Saul William’s Niggy Tardust album download included a 20-or-so page pdf where each set of lyrics was given a whole page with art behind it. It was big enough that at maximum resolution, it more than filled my screen, so in practice, I would say it was more than equivalent to a vinyl LP’s cover.

  4. Dre' says:

    McCandless doesn’t have a prayer in the world of winning this lawsuit.

  5. fair_and_balanced says:

    the album cover use infringes on his persona??
    His persona is a space suit??

    If he wins this then all paparazi will become illegal in the entire world and space.

  6. Spook Man says:

    Sounds of a greedy lawyer looking for a big payday on this one..

  7. Rectilinear Propagation says:

    http://books.google.com/books?id=EkdDnFdoDMkC&pg=PA222&lpg=PA222&dq=infringement+persona&source=bl&ots=ATKy80NObf&sig=72yBbrM1yFIrciWRK5m2EuTRXTY&hl=en&ei=6dGtTMzDFImcsQOW4Nn1Cw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBIQ6AEwAA#v=onepage&q=infringement%20persona&f=false

    Just found this.

    If it’s accurate it’s only necessary to be able to tell who the person is supposed to be. If we could tell by looking at that photo “Oh, that’s so-and-so” they’d have a case. I can’t but I guess his lawyers are going to try to prove that some people can.

    • There's room to move as a fry cook says:

      Did anyone here remember his name before reading the article? I doubt it.

    • The cake is a lie! says:

      If she had used the photo of Neil Armstrong setting first foot on the moon, then that would be another story. Everybody knows who was in that space suit. However, with the (dozens? hundreds?) of people to have floated in space like that, I seriously doubt they are going to get much traction in a lawsuit saying that everybody knows who that is a picture of. Some space images are iconic because of the scenery and others because of the subject in the picture. This is definitely more because it is a cool picture and not because we know who it is a picture of. Get over it, spaceman. You aren’t as popular or as well known as you think you should be.

    • jessjj347 says:

      Yeah, a lot of people don’t understand that while you may be able to use a picture that isn’t copyrighted, you cannot use a picture of a person unless you’re not violating their privacy.

  8. Tim says:

    Umm. I’m pretty sure people don’t own their “persona,” especially if they’re federal employees, doing something directly related to said federal employment. It can’t be a privacy claim, because the photo has been published all over the place.

    Yeah, seems pretty open-and-shut to me. It’ll either be dismissed or settled for a few dollars.

  9. kurtmac says:

    I’ve used NASA images for many personal and commercial projects. They do stipulate in their terms that you can’t use images with people (astronauts, crew, etc) without getting a model-release from that person, and the image must be used in a way that doesn’t let-on that the person is promoting your product. I can’t use an Apollo 11 image and say “Buzz Aldrin sure wishes he had a Snuggie in 1969!” The problem in this case, and why I agree that it is frivolous, is that astronaut Bruce McCandless likeness nor nametag on his EVA suit aren’t recognizable in this image. Also, this is such a historic and widely used image (first untethered, free flight using the Manned Maneuvering Unit) why wouldn’t he be suing the thousands of other entities who have used it in magazines, advertising, posters, websites, in Windows XP its a user profile picture option, etc…

    • perkonkrusts says:

      First, and hopefully not last, mention of Buzz Aldrin and Snuggie in the same sentence.

    • A Pimp Named DaveR says:

      It would only be frivolous if there were a case on point, i.e. something holding that the CA right of personality does not apply if the individual is not recognizable in the photo/other work.

      There isn’t.

      Therefore, it’s a case of first impression, and non-frivolous. Why is it non-frivolous? Suppose I had a picture of Julia Roberts buck naked from the neck down. I use it to sell my magazine, “Pretty Woman Buck Naked From The Neck Down”. Should I be free from having to get Julia Roberts’ authorization to use the photo because she can’t be identified? Maybe, maybe not — but the legal question is far from frivolous.

  10. digital0verdose says:

    Sounds like someone is pissy about not being the first to walk on the moon.

  11. shepd says:

    I thought NASA only took astronauts that passed a psych test!

  12. Larkspur says:

    People who are famous for some reason do have rights to their persona as far as it’s used for publicity. In 1993, for example, Vanna White won a lawsuit against Samsung after they had an ad which just used a robot character who was meant to remind people of Vanna White on Wheel of Fortune. Granted, there are limits, and sometimes it’s just a matter of being reasonable. Given that few people could look at this photo and have any idea which astronaut it was in the picture, this seems like a long shot.

    • GMFish says:

      Only people in California. It’s the only state in the union with a publicity rights law.

      • A Pimp Named DaveR says:

        No it’s not. There are about 17 or 18 states that have explicit laws, and virtually all the other states have case law that establishes a common law right.

    • peebozi says:

      Reasonableness has no place in the “practice” of law…nor with any of the legal practitioners.

  13. dgingras says:

    Federally funded NASA got his ass there. He wouldn’t be in that picture without millions of tax payer dollars. He must be hard up for cash.

  14. DanRydell says:

    I don’t know why the title of this article mentions that the image is public domain, because they’re not suing over copyright infringement.

    They’re using an image of a person to promote a product, and that person has the right to control how his image is used and to be compensated for its use. There was a big lawsuit over the same issue a few years ago when a guy recognized his face on a Taster’s Choice package. Nestle owned the copyright to the image, but they hadn’t gotten his permission to use it on the product. He won millions.

    • quijote says:

      Yeah, I guess it does make some sense. To have your photo on an advertisement is like an endorsement. It doesn’t matter that it’s not your face, as long as enough people can recognize that it’s you. What if one day you saw yourself on a Dido album cover? I wouldn’t be happy about it.

  15. Dover says:

    I know the guy who took this photo, Hoot Gibson. Awesome dude.

  16. EcPercy says:

    A picture in the public domain… guessing the lawsuit gets thrown out.

  17. peebozi says:

    don’t the taxpayers own this if it was taken but a NASA camera?

    • everclear75 says:

      yes, but with a small caveat.. Not all imagery is released for public consumption.. Example, certain Payloads, Medical, and some Personal imagery..

    • DanRydell says:

      The taxpayers don’t own it, it’s in the public domain. No one owns it. To say the taxpayers own it would mean that the taxpayers can collectively exert control over the image. That is not the case. No one can exert control over something that is in the public domain.

      Also, our government is the government of all the people in this country, not just taxpayers.

    • Cantras says:

      not only if it was a nasa camera, but I’m pretty sure that if they snuck their own camera on board and took shots while on the government dime, that’d be public domain too.
      (I’m thinking about the picture of deer standing in a river as a massive forest fire looms in the distance. Snopes confirms that it’s a real picture, and talked to the guy who took it, who was a government forest ranger, so the picture was public domain — IIRC)

  18. everclear75 says:

    As someone who deals with NASA imagery for a living, let me give some incite. The image itself is in the public domain, but the if there is a recognizable figure in the pic, say in this case, McCandless was in closer view and he was easily distinguishable, then he would have a case. And I quote our own guidelines for use of NASA imagery:

    “If a recognizable person, or talent (e.g., an astronaut or a noted personality engaged to narrate a film) appears in NASA material, use for commercial purposes may infringe a right of privacy or publicity. Therefore, permission should be obtained from the recognizable person or talent. If the proposed use of the NASA material could be viewed as a commercial exploitation of that person. However, if the intended use of NASA material is primarily for communicative purposes, i.e., books, newspapers, and magazines reporting facts of historical significance (constitutionally protected media uses), then such uses will generally be considered not to infringe such personal rights.”

    With this being said, his other image is more recognizable and has been used in countless other adverts… He doesn’t stand a chance in court..

  19. BStu78 says:

    This is actually a pretty interesting case. While the photograph is obviously in the public domain, the astronaut is correct that he retains a right to publicity for his identity. That’s the case in any photograph, even one otherwise licensed. Publicity rights are always a seperate concern. Obviously, this a different use than a textbook or even a documentary on space, so I can’t write off his case.

    This will likely hinge on whether you retain likeness rights when your actual physical likeness cannot be discerned. Its an interesting issue and obscure enough that there may well not be any precedent. There obviously is the secondary issue of whether being a government employee nullifies his likeness rights, but I’m inclined to think it wouldn’t. Again, this isn’t the government using the photo, but a commercial product. As to whether he retains rights to publicity in a space suit, I have to assume he does. I think he’s got a valid case here.

    • Gulliver says:

      You do not. It would be like a generic footbball player picture being put out there, and suddenly Jim Brown wants money because he was a football player it was modeled after.
      I think a better case can be made for a college football player who is REQUIRED to give up his rights to his image to a school for EA Sports.

      • Merricat says:

        Actually you do. Vanna White proves it. The ad she was suing against didn’t even include her picture, just that of a robot at a game board.

      • BStu78 says:

        Except this IS the astronaut bringing the suit. So it’d be like Jim Brown suing for the use of Jim Brown’s likeness. Which is a pretty easy lawsuit to win, even if he’s photographed from an angle where you can’t actually see any recognizable features due to his football uniform. You take a picture of ANYONE and use it commercially, you expect to have model clearance. That would go for an actor in a spacesuit, too. The relevant issue here is whether you still qualify when you are in a space suit. Given that his body profile is clearly delineated, I’d be inclined to say yes but an interesting argument could be made that the suit is more vehicle than clothing. The idea that any of this obvious is remarkably ill-considered and just a knee-jerk reaction.

        As to college athletes, I doubt their likenesses can be used for commercial purposes outside of the the NCAA without their permission. Indeed, it is safe to assume that the cover athletes of NCAA video games themselves are contracted to give permission.

        • Billy says:

          I think he was trying to invoke the ruling in James “Jim” Brown v. Electronic Arts, Inc.

          That case, though, doesn’t invalidate the fact that there is a right of publicity. That case only tailors that right.

  20. StevePierce says:

    Just to make Mr. Astronaut Persona even more upset, I am buying 10 copies of this CD to give out as stocking stuffers. I will also include a copy of the Bloomberg article rolled up as a little scroll tied off with a ribbon and an the mission patch from the Kennedy NASA Store of which Mr. Persona gets no royalties from the sale of NASA merchandise bearing his name.
    http://www.thespaceshop.com/stspshchmipa3.html

    BTW, this mission, STS-41B flown Feb 3-11, 1984 was pretty much a failure. The two satellites they launched failed after the rocket motors malfunctioned leaving them in a virtually useless orbit. The third satellite was never launched because of a problem with the robot arm. The last item was the IRT which was a essentially an inflated target balloon that was to be launched and then they would practice rendezvous maneuvers. Guess what, the IRT failed too.

    Mr. Persona is actually Bruce McCandless II and if he gets any money from this lawsuit, the taxpayers should get their money back from McCandless in what essentially was an 8 day joy ride in which none of the primary objectives were accomplished. I am sure none of these problems were Mr. McCandless’ fault, but if he wants to take credit and money for the photograph, then he needs to accept the blame for the failure of the mission.

    Cheers!

    – Steve

  21. mcgyver210 says:

    This Astronauts lawyers should have to pay all the cost involved in defending this Frivolous Law Suit if he looses or it is thrown out. On the other hand if by some miracle he won I feel he should have to give all proceeds to the NASA Agency since he would be profiting from is job where he was paid with Government Funds.

    Example of same: I also feel when a LEO does a side security job that usually pays more than his real job he should pay for the use of the car, uniform, training etc same as anyone would in the private sector.

  22. GuyGuidoEyesSteveDaveâ„¢ says:

    Well, I guess, he’s not going to thank her, for making this the best day of his life…

  23. Bossco says:

    She and Sony could have just asked permission first. I do a lot of photography and really hate it when someone just uses my photo without asking. I don’t expect compensation just some recognition. A little politeness goes a long way.

    • midwestkel says:

      Maybe they asked the photographer, but it’s not the photographer suing, it’s the guy in the picture.

  24. donkeydonkeypublicbathroom says:

    Looks like Mr. Astronaut guy took Gene Simmons’ advice and is suing everyone! Take their car and their house! Thanks, Gene. You ruined it for everyone.

  25. midwestkel says:

    I would think astronauts were better than this…

  26. LaurelHS says:

    The album is from 1984. Why did McCandless wait more than 20 years before filing a lawsuit?

  27. Quake 'n' Shake says:

    I want to sue Dido because this album was a huge disappointment after Life for Rent.

  28. Nigerian prince looking for business partner says:

    Since he was working for NASA at the time, wouldn’t the photo be property of the US Government?

  29. midtower says:

    How did MTV handle this? Or were they ever challenged? (granted, more than one person walked on the surface)

    http://www.thespacereview.com/archive/713a.jpg

  30. Cicadymn says:

    Somebody has run out of money.

    It feels like 99.9% of court cases are of people that have no right to get paid, getting paid.

  31. Duckula22 says:

    I guess that makes him an asstronaut.

  32. NYGuy1976 says:

    Why is it frivolous. Someone used and image in a for profit situation and never compensated the person who took it. If a film “borrowed” Dido’s music and never paid her I am sure she would be the first to file a lawsuit.

  33. JakeChance says:

    Frankly, this is, for lack of a better word, retarded. You can’t even tell who that is. You can barely tell it’s a NASA space suit never mind what iteration it is or what year it was potentially taken.

    The worst part of all this is that this will make the astronaut community look bad long after this astro-turd loses his case.

  34. Galium says:

    Does this mean that politicians can sue PAC’s?

  35. MacBenah says:

    It’s a government-produced photo, right? That makes it Public Domain, as I understand the law.

  36. drfaustus71 says:

    I’m thinking that this may be the case…. no, you cannot see his face or his name embroidered on the suit. HOWEVER, because he is in the unique position to have really been the only one in this historic situation, it could be no-one else but McCandless. Therefore, inherently identifying the figure as him.

    Just my 2 cents.

  37. Destra says:

    This particular problem boils down to this two simple questions:
    One, is outer-space a public place? If yes, then an astronaut has no expectation of privacy and you can use a photo that they are in. I would say that since outerspace is not owned by anyone, it would be considered a very public place, regardless as to how difficult it is to get there.

    And two: is the particular astronaut recognizable from this photo as a public figure? This would get a maybe from me. Some people have mentioned the Vanna White case. In that, the robot was dressed up glitzy and in front of very recognizable turn letters. See here:
    http://cyberlaw.stanford.edu/system/files/971_F.2d_1395-vanna%20white_0.jpg
    Since the robot was very recognizable as Vanna, the advertiser was not able to use that image. However, it’s very difficult to tell who is in a spacesuit from so far a distance. The only way the astronaut would be able to win is if he could prove that that picture is famous enough that enough everyday people would know that it was him in that suit in that shot– an unlikely but possible thing to do.

  38. Jimmy37 says:

    What persona? Can this guy pick himself out in the picture? How do we know that there was anyone or anything in the space suit? How do we know it wasn’t photoshopped?? As these guys get older, they get more full of themselves.

  39. Jimmy37 says:

    What persona? Can this guy pick himself out in the picture? How do we know that there was anyone or anything in the space suit? How do we know it wasn’t photoshopped?? As these guys get older, they get more full of themselves.

  40. Anaxamenes says:

    Um, this photo was taken while you were on the job working for NASA. Therefore this picture is not yours, it belongs to your employer, NASA, which we all actually own. Just like if you worked for a drug maker and came up with the solution to cure cancer, it would belong to the drug maker, not you.

    Simple, next case please.

  41. xredgambit says:

    From the look of the photo, he is over international waters. That means that anyone can do anything to the photo. You can do anything in international waters, I once saw a boat rebroadcasting the nfl with only implied oral concent.

  42. ProfJonathan says:

    Nothing new here–Edwin (Buzz) Aldrin has long required permission to use the iconic photo of him on the Moon (http://starchild.gsfc.nasa.gov/Images/StarChild/space_level2/aldrin_big.gif) in advertising. {ProfJonathan}

  43. Good Cop Baby Cop says:

    Ah, the Vampire Weekend effect.

  44. zifnab0 says:

    Know all those demands and lawsuits when some politician uses a song in their campaigns? Same thing. It’s not about copyright infringement, it’s about perceived endorsement.

    If it’s an iconic photo of a well-known (in some field) astronaut, then he has a case. Copyright has absolutely nothing to do with anything.

  45. floyd fan says:

    Hey, I can see my house in this picture. Think I have a case?

  46. Excuse My Ambition Deficit Disorder says:

    Guess he really doesn’t like Dido…maybe he feels Dido herself infringes on his persona…