Yesterday, we released the rules and registration forms for the 2009 Northrop Grumman Lunar Lander Challenge. We’re grateful for the attention that this release has already seen, and if the early feedback we’ve received from potential teams is any indication, we’re entering a banner year for the competition. The level of excitement both here and among our colleagues at NASA and at Northrop Grumman couldn’t be higher.
I did notice a few concerns published about one section of the rules in particular, which merits further explanation. Two bloggers I greatly respect, Clark Lindsey at HobbySpace and Rand Simberg at Transterrestrial Musing have both questioned a section of the 2009 Team Agreement that deals with media rights, the ability of various groups to commercially exploit photography or video telling the story of the competition. Clark writes:
Section 4 of the document, especially subsection 4.2, seems overly aggressive to me with respect to the X PRIZE Foundation's clams to media rights. Apparently, a team has to give up the right to any income generated from their own videos, photos, etc. even for preparatory activities away from the place and day they attempt the competition flights. In fact, sounds like even posting a video on YouTube requires permission from XPF.
I don't understand why XPF should get all of these rights just for managing the contest for NASA.
This is certainly a valid line of questioning, so I wanted to take a detailed walkthrough of the language in the Team Agreement to gain a clearer understanding. I’ll call your attention to a few key clauses in section 4.2—which, for reference, is identical to the language used in the first three years of this competition.
"Participant Footage" as used in this Agreement means video or photographic material taken by, or on the behalf of, PARTICIPANT during a Challenge Interval solely to the extent it displays the image or likeness of PARTICIPANT, PARTICIPANT'S launch vehicle and/or PARTICIPANT'S TEAM LEADER and TEAM MEMBERs including such video or photographic material taken at a Lunar Lander Challenge event. "Participant Footage" shall not include video or photographic material that displays the image or likeness of XPF, any FUNDER, any TEAM other than PARTICIPANT or the persons, vehicles, or designs associated therewith, or any video or photographic material taken at a Lunar Lander Challenge event other than Participant Footage. Notwithstanding anything herein to the contrary, PARTICIPANT, its TEAM LEADER and each of its TEAM MEMBERs shall have the right, without obtaining XPF's approval or entering into a separate written agreement with XPF, to (i) use Participant Footage for any Promotional Use and (ii) commencing on the date of the first anniversary of the completion of a Challenge Interval, use Participant Footage taken during such Challenge Interval for commercial purposes; provided, however, that any commercial usage prior to such date shall remain subject to the restriction and limitations otherwise set forth in this Section 4.2.
PARTICIPANT, its TEAM LEADER and each of its TEAM MEMBERs may commercially exploit the story of their participation in the CHALLENGE, but may use Participant Footage for such commercial exploitation only in accordance with the restriction and limitations otherwise set forth in this Section 4.2. Except for use of Participant Footage, usage of audio, video, or photographic material recorded by, or on the behalf of, PARTICIPANT during a Challenge Interval that is related in any way to the CHALLENGE that is not a Promotional Use shall be conditioned upon and subject to written agreement with XPF.
Upon review of those sections, one finds that teams do indeed have the right to capture, produce, and commercially exploit footage of their team as they participate in this Challenge. Teams also have the right to designate someone else to capture or produce this footage. To ensure coordination, if Teams expect to commercially exploit—that is to say, to sell for profit—this footage in the near future, they would need written permissions from XPF, which will not be unreasonably denied. If teams expect to give the footage away (via YouTube, as Clark suggests, or any other means), they do not need any prior permission—doing so is considered "Promotional Use" rather than "Commercial Use."
There are some limitations on teams’ rights to collect and use this content; however, these limitations are fairly standard and reasonable. Teams do not have the right to capture or exploit footage of X PRIZE Foundation personnel or of other Teams without prior permission. Similarly, teams do not have the right to commercially exploit footage that the X PRIZE Foundation or other Teams have taken or generated without prior permission. These permissions will not be unreasonably withheld by the X PRIZE Foundation.
Lastly, I will note that the X PRIZE Foundation does not have rights to use or exploit any footage of any of a Team’s activities unrelated to the Northrop Grumman Lunar Lander Challenge without express permission from the Team. We have managed to work with this type of arrangement quite comfortably in the past, e.g. by not filming or covering in way any of Scaled Composite's highly proprietary and often classified projects outside of their Ansari X PRIZE effort.
I hope that this provides a satisfactory answer to some of the concerns voiced by Clark, Rand, and others. We at the X PRIZE Foundation have no intention of preventing Teams from promoting themselves, from spreading the good word about the Northrop Grumman Lunar Lander Challenge, or even from directly profiting from the sale of media products covering the Team, if they are able to do so. Over the first three years, we have been able to work with our teams in good faith to ensure that they are able to operate with a minimum of interference while still providing the necessary assurances that X PRIZE Foundation personnel and the X PRIZE Foundation brand—along with the personnel and brands of our partners—get a reasonable level of protections.
Hopefully, this explanation will both correct some misconceptions and provide some valuable context about why this topic is addressed at all in the Northrop Grumman Lunar Lander Challenge rules. If you have questions, comments, or additional concerns, please feel free to drop them in the comments here.