First published in Association of National Advertisers

The United States National Aeronautics and Space Administration, more commonly known as NASA, is hugely popular, capturing the public’s trust and rocketing to the top of favorability surveys. Even at a time when people disagree over just about anything, especially when it comes to government spending, it is estimated that 80% of Americans believe that the International Space Station is a good investment for the country. And there is no question that consumers are eager to wear their NASA pride―literally. From luxury Coach handbags selling for $895 to everyday t-shirts offered at a more wallet-friendly $20, NASA-branded products are hotter than solar flares.

 

NASA makes it easy for companies to satisfy consumers’ fascination for the agency, allowing even commercial companies to use its logos for free in an effort to support its mission of increasing public awareness of the agency and its programs.  A company interested in featuring a NASA logo on a new product need only email NASA’s Bert Ulrich, who typically reviews requests in a matter of only a few days, if not just a few hours.

The NASA Meatball and Worm Logos

Since its inception, NASA has been represented by only two logos, both of which are familiar to consumers.  The first NASA “insignia,” affectionally called the “meatball logo,” was developed in 1959, when NASA ran a contest in which its employees could submit design ideas.  NASA’s James J. Modarelli, who worked for the agency as an artist-designer at the Glenn Research Center, won the competition.  Saying that he got his inspiration from an early supersonic airplane design, Modarelli designed a logo consisting of a solid blue circle scattered with stars (hence the “meatball”), with NASA’s initials in white encircled by an orbiting star.  Perhaps most distinctively, the meatball features an airplane-inspired sharp red arrow that cuts across the logo on an upward trajectory, evoking takeoff.

The meatball logo has had two lives.  It was used from its creation until 1975, when a second logo was created.  NASA then returned to the meatball in 1992―and it remains one of the official NASA logos today.

NASA’s other brand identifier (officially called the “logotype”) is a clean-lined stylization of the NASA name and known as the “worm.”  The worm was designed under the Federal Graphics Improvement Program as part of a push to rebrand government agencies.  Under that program, NASA hired Danne & Blackburn, a New York design studio, to design both a new logo and a 90-page NASA Graphics Standards Manual.   The worm logo is a more stylistic (some might say modern) trademark that features NASA’s initials in a bold red, rounded typeface on a white background. 

The worm was originally used from 1975 to 1992.  It was reintroduced by NASA in April 2020 and used on the SpaceX Falcon 9 rocket, as seen below.  It was officially readopted as an agency logo on November 12, 2020 (14 CFR 1221.111). 

NASA also has a formal seal, which it considers to be the more official, dressed-up version of the meatball logo.  Unlike its logos, NASA does not allow any third party to use the NASA seal.  Rather, it is reserved for internal use during formal occasions, such as for awards and other ceremonies.

NASA protects its logos in a multi‑layered fashion.  Technically, there is a pending trademark application filed in 2010 for the NASA initials (Serial No. 89001633) owned by the “National Aeronautics and Space Program” covering all international classes, but it is unclear who filed this application or its status.  More importantly, NASA’s logos enjoys the protection of two federal statutes.  First, 51 U.S.C. § 20141 prohibits the use of NASA’s name or initials in a way that suggests either a connection with NASA or NASA’s endorsement of a product or service.  The United States Patent and Trademark Office relies on this provision to reject trademark applications filed by third parties directed to the NASA initials (see e.g., refusals of Application Serial Nos. 88194661; 87262168; 86849402; and 87004347).  Second, 18 U.S.C. § 701 makes it a crime to use any government agency’s “insignia”—which presumably protects both the meatball and the worm―except as permitted by agency regulations.

Further, NASA promulgated regulations (14 CFR § 1221.1 et seq.) that, in relevant part, establish both the meatball logo and the worm logo as agency assets.  It also illustrates situations in which these logos may be used.  Most of these uses are limited to official purposes (like putting NASA on the side of a spaceship), but the regulations also include a “catchall” provision permitting NASA to authorize the use of its logos on a case-by-case basis.  To implement that provision, NASA created merchandising guidelines—accessible at https://www.nasa.gov/audience/formedia/features/Merchandising_Guidelines.html —that describe the circumstances under which NASA will—and will not—authorize the use of the meatball and worm logos.  However, despite the title “NASA Regulations for Merchandising Requests,” these guidelines do not appear to be regulations per se (e.g., they were not promulgated following notice and comment), so while they provide guidance to the public concerning how NASA is likely to act in a given case, they may not, standing alone, have the force of law. 

In practice, NASA considers it important to disseminate information about the agency and its initiatives to the public.  Facilitating the use of its logos helps achieve that goal.  Accordingly, it imposes few conditions on those who want to use either of its logos for commercial purposes.  NASA does not, however, “license” the logos or accept royalties; rather, it grants (or denies) permission on a case-by-case basis.  Its merchandising guidelines, for example, limit the use of NASA’s worm logo to appropriate historical contexts (though this may change in light of the new regulation).  For now, however, this means that the worm and meatball logos cannot appear together, as NASA has never used both logos during the same time periods until now.  Nor can the worm logo appear on imagery from NASA programs that did not take place while the logo was in use.  Moreover, these guidelines preclude co-branding—manufacturers cannot use NASA’s logos with the logo or name of any other entity, including the producer of the merchandise.  The guidelines also prohibit either logo from being used in connection with certain products, including alcohol, food, cosmetics, tobacco, underwear, and technology.

Perhaps due to NASA’s popularity and the widely-held respect for NASA, Jeffrey Heninger, a senior IP attorney at NASA, explains that in the ten years he has worked at NASA, the agency has never had to sue to enforce rights in its logos.  NASA has, however, asserted its rights in at least one opposition to a pending trademark application (Serial No. 87637379).  There, NASA opposed a design mark application for a guitar-pick-shaped version of the meatball logo, depicted below.  In its opposition, NASA explained that its logos are protected under 14 CFR § 1221.1 and that the applied-for mark is confusingly similar to the meatball logo.  The applicant did not respond to the Notice of Opposition and the TTAB found for NASA by default.

NASA Photos, Videos, and Audio Recordings

Consumers and companies are not only interested in NASA’s logos, however.  NASA’s website features captivating images, including many photos and video files that were taken from space, as well as audio recordings, including materials from the classic “one small step” recording to sounds of “marsquakes” recorded by a NASA seismometer.  This content makes NASA’s Instagram account can’t-miss social media, boasting 61.4 million followers.  NASA also makes its library of images, videos, and audio files available for marketing campaigns—again at no charge.  Accordingly, advertisers don’t have to catch a ride to the moon to get great shots of the solar system—they just have to contact NASA and ask.  And they do.  The final frontier, as captured by NASA, is regularly featured in advertising for everything from the Superbowl to presidential campaigns.  But the use of NASA’s materials isn’t all commercial: personal bloggers, teachers, and others also enjoy using NASA’s content.

Again, though, NASA protects its content in an unconventional way.  NASA (like all government agencies) is not entitled to U.S. copyright protection for its photos, video files, or audio recordings (for works created by civil servants such as astronauts).  NASA does, however, require those who use these materials, particularly those who wish to use the content commercially, to comply with some conditions.  Specifically, NASA has issued guidelines that govern a broad range of activities related to its audio and visual content.  For example, NASA’s advertising guidelines, which can be accessed at https://www.nasa.gov/audience/formedia/features/Advertising_Guidelines.html, prohibit the use of any of NASA’s materials in a way that suggests the agency’s endorsement.  The advertising guidelines also prohibit any current NASA employee from appearing in advertising, and they provide that former astronauts cannot use their past affiliation with NASA to promote a product or service.  NASA’s advertising guidelines further explain that, in addition to NASA having certain rights in its materials, NASA astronauts have a “right to publicity”—essentially, the right of an individual to control the commercial use of his or her identity—that may apply to the use of NASA images.  NASA has also consistently warned that the commercial use—which includes any use related to advertising, whether by a for-profit company or a nonprofit—of any image of an astronaut may run afoul of these requirements and may infringe the astronaut’s right to publicity.  

NASA imposes fewer requirements when its materials are used in non-commercial contexts, such as for an academic purpose or on a personal blog.  In such situations, what applies are NASA’s “media usage” guidelines, which are available at https://www.nasa.gov/multimedia/guidelines/index.html.  These media guidelines, which cover the non-commercial use of any NASA materials, require simply that (1) NASA content must be used in a factual manner that does not imply endorsement and (2) NASA should be acknowledged as the source of the material.

Notwithstanding NASA’s lack of U.S. copyright protection for its content, NASA does have bases to take action if there is a violation of its guidelines.  NASA’s authority to restrict the use of materials that include the NASA name or initials, for example, likely stems from 51 U.S.C. § 20141―the statutory provision discussed above in the logo context, which prohibits the use of NASA’s name or initials in a way that suggests either a connection with NASA or NASA’s endorsement of a product or service.  It is also possible that NASA content is protected by copyright outside the U.S. in countries that do not have public domain provisions similar to 17 U.S.C. § 105 (exempting works of the U.S. government from copyright protection).

That said, 51 U.S.C.  § 20141 does not address the commercial use of NASA materials that do not feature NASA’s name, initials, logos, or employees, such as NASA’s popular “earthrise” photo, shown below.  NASA’s basis for restricting these materials (which it does through its guidelines) does not appear to be grounded in statutory language or NASA regulations.  Rather, NASA relies on the terms and conditions detailed on its websites to govern these uses.  But even if NASA’s legal basis is unclear, Mr. Heninger reveals that most users are happy to comply with its guidelines and that NASA has not taken anyone to court for misusing its images, video, or audio recordings.

Advertising and the International Space Station

While NASA has not monetized the use of its logos or other content—and may not have the necessary Congressional authority to do so—NASA has created an opportunity for its valuable services to finally pay off.  In mid-2019, NASA issued a new directive calling for the agency to require those who want to engage in commercial and marketing activities relating to the International Space Station―occupied year-round and accessible in lower earth orbit―to pay for the privilege and help offset NASA’s ISS operating costs.

Some might say that NASA has been late to the game, since Russia has long commercialized space.  In 2001, for example, Pizza Hut paid Russia a hefty fee, $1 million, to be allowed to put its logo on the side of a Russian rocket and provide the cosmonauts on the International Space Station with personal-sized, vacuum-sealed salami and cheese pizzas—which were a perfect fit for the Station’s small oven.  This delivery, which was part of a $500 million re-imaging campaign for Pizza Hut, broke the record for the furthest pizza delivery ever made.  And it has continued to pay dividends over the years.  In 2014—13 years after it made the delivery—Pizza Hut included videos from the stunt in advertisements for its new hand-tossed pizzas.

More recently, DoubleTree hotels shipped cookie dough, along with a specialized oven, to the International Space Station in 2019 as part of an experiment run by the station’s commander, Luca Parmitano of the European Space Agency.  Showing immense restraint, the astronauts saved three of the cookies for additional testing following their return flight to Earth on SpaceX.  It is not clear, though, whether DoubleTree paid anyone to make the delivery.  But DoubleTree now features images of its space cookies on its website and social media—and it sells “limited edition” tins of six “Cookies in Space” for $15.50, on its website.

Now NASA wants to share in the financial benefits of the International Space Station’s unique location.  Although it was only a first step, Estée Lauder and NASA agreed in 2019 that the company would pay NASA $17,500 per hour, and a total of $128,000, to take its cosmetics into space.  The plan is for NASA astronauts at the station to take photos and videos with the cosmetics in zero gravity, which Estée Lauder will then use in advertisements.  Does “you look like a star” mean something different in space?    

The astronauts themselves are almost certainly championing these and similar efforts.  Making deliveries to the International Space Station is neither easy nor low-cost.  Deliveries are typically made no more than once a quarter—and the cost is $10,000 a pound.  But after a long diet of freeze-dried and non-perishable food, the astronauts on the station must be hoping for a reboot of Pizza Hut’s pizza campaign or, perhaps, some more cookies.