Can satellite images be copyrighted?

Question

OpenStreetMap doesn't allow editors to trace satellite imagery from Google, claiming that the imagery is copyrighted and tracing it would be a copyright violation.

But how can satellite images be copyrighted? In the US, as I understand it, copyright only protects creative expression, not factual data.

Feist v. Rural Telephone ruled that tables of factual data can be copied without violating copyright, for instance, and US law does not consider "sweat of the brow" as establishing any rights.

mere collections of facts are considered unoriginal and thus not protected by copyright, no matter how much work went into collating them. The arrangement and presentation of a collection may be original, but not if it is "simple and obvious" such as a list in alphabetical or chronological order.

There is some value-added content that DOES get a new copyright, but only for the actual new work (that is, it may be possible to remove the new copyrighted content to go back to a public domain document)

Since Google's satellite images are just collections of factual data, collected in a "simple and obvious" order using a mechanical process, with a purely utilitarian map projection, and presented accordingly, with no creativity involved, it seems to me they would not be subject to copyright?

Even if the satellite imagery has some added creativity/originality that creates a new copyright, the factual information of where a road exists, for instance, is public domain, and so it seems that tracing the imagery would "remove the new copyrighted content" and only copy the public domain data?

Answer 1

OSM does use aerial/satellite images. But as the OSM FAQ explains, Google Maps and similar sources have unsuitable terms of service. These would prevent use even if no copyright was involved.

The location of a street is factual and cannot be copyrighted. However, a photo of a street (whether at eye level or from a satellite/plane) can be protected by copyright, as can the presentation of this fact as part of a map. Maps are not necessarily just databases of facts¹ but involve decisions in how to best present and arrange this information. Similarly, projecting aerial photography onto a map is not merely a gallery of images – it requires warping, stitching, retouching, and color-adjusting images e.g. in to remove cloud cover. Creating the raw images also requires decisions about flight patterns, altitude, camera perspectives, lenses, and exposure times. Compare the guidance in Circular 42 of the US Copyright Office:

The copyright in a photograph protects the photographer’s artistic choices, such as the selection of the subject matter, any positioning of subject(s), the selection of camera lens, the placement of the camera, the angle of the image, the lighting, and the timing of the picture.

The result: Whether I make a panorama snapshot with my smartphone camera, or a billion-dollar company flies a plane to create an array of aerial photographs – the result is likely to be a copyrightable image, regardless of the substantial involvement of automated means. Even if the subject of the photo is very boring and seems uncreative.²

Of course, there is some public domain imagery that can be used. In particular, works created by US government agencies is public domain within the US. However, the materials produced by the likes of NASA and the NOAA/NWS are not necessarily useful for mapping purposes. And public domain status within the US is of no use to people outside of the US, which many OSM contributors are.

<sup>1. Databases are subject to copyright in some jurisdictions, notably the EU.
2. Technical photography without artistic merit is still covered by copyright. Other countries might apply a different threshold of originality, but this aspect is somewhat universal.</sup>

Answer 2

Other answers argument why information extracted from satellite images (or the images themselves) can't be copyrighted in the USA. However, Open Street Map is based in the UK, whose copyright law have some points that would sound strange to the rest of the world, namely the doctrine of the sweat of the brow, where non creative works - like making satellite images and geolocating them - creates copyright. Therefore, coordinates and data can't be taken from Google Maps to be uploaded to OSM, or at least it can't be done in mass.

It's interesting to contrast that with Wikipedia and Wikidata, which are based in the US where is no problem uploading coordinates measured in Google Maps. However, that creates a concern for OSM users that can't (or don't allow) to upload coordinates from Wikidata to OSM in spite of Wikidata having a CC0 (public domain) license, because some data imported to Wikidata is not seen as public domain in the UK.

Answer 3

Facts cannot be copyrighted. 17 USC 102 (b) reads:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Most other countries have similar provisions in their copyright laws.

The well-known Feist decision did indeed deny copyright protection under US law for a compilation of facts in an obvious order, in that case a telephone book. Not all countries follow this decision in their copyright laws.

But a photographic image is not treated as simply a collection of factual data in copyright law, even though many facts can be derived from it. Options such as the angle of view, moment of taking the image, lighting, shutter speed, wavelength response of the film or sensors, and other such factors constitute creative input to the image, which would be a different image had different creative choices been made.

When the image is created via a mechanical or automated process, the control or programming that governs those factors will be the creative input. Thus such images will usually be protected by copyright.

The correct association of a coordinate grid with an image is a fact, and cannot be protected by copyright. The location of a geographic feature is a fact, and cannot be protected by copyright.

Whether tracing or other methods to extract representations of geographic features or structures from an image, excluding most if not all the creative aspects of the image, is an infringement of copyright does not seem to be a settled issue in copyright law, either in the US or elsewhere. At least I have not been able to find a reported case on point for this issue. Google may be claiming more than copyright law will grant it.

What OpenStreetMaps chooses to allow is not a determination of what copyright law covers.

There is also the question of the terms of use of the various Google products, such as Google maps. To use these images one must usually agree to such terms, and those may limit the use more than copyright law would. That will depend on the specific language of the ToS, and the degree, if any, to which those terms are limited by law. Again, I did not find a specific case on point for this.

One could simply proceed with tracing, risking suit by Google. That could be expensive even if Google loses, and very expensive if Google wins. One could consult a lawyer with copyright expertise who could research the matter with tools that I do not have access to, and consider the exact details of any planned use in ways that I cannot. Or one could attempt to obtain a license from Google for the exact use desired. This may not be available, but if it is available, it would probably be cheaper then either of the other options I mention.

Answer 4

Is there really creativity in sat photos? Isn't it just

1. Launch satellite
2. ???
3. Profit

Forgive the meme, but the point there is that step 2 cannot be overlooked. A lot of creative decisions do get made there! Focal length. Aperture. Focus. Angle of view (slightly leading, straight down, slightly trailing). Orbit height. Do you take a bit of a side angle or wait a month until the satellite is straight over it? A dozen different compromises based on sun angle, local air pollution today, angle of view, etc.

There you sit, looking at photo runs from 44 different passes. 34 are unusable, leaving 10, each mediocre in different ways. The sharpest two have very low contrast, and excessive sun glare off roofs. Another has an oblique angle customers don't like. Which do you choose to publish?

Answer 5

Regardless of the status of the original raw photos (which Google doesn't release, and those status may depend on the country), the images available online are copyrightable for the same reasons that allow you to copyright medical images. You don't release the raw image but instead modify it in a non-trivial way. For aerial photos, you can combine several photos in a way that makes the resulting picture clearer (remove clouds and out-of-focus areas), add labels, etc. This produces a derivative work which is indeed copyrightable in practically any country, including US. Here's how it works for medical images: