Claiming back the free commons of film

PROPERTY / Filmmaker Richard Misek is on a mission to tear down the bars that keep historic images locked away behind paywalls.

In his short but brilliant A History of the World According to Getty Images, he exposes the open secret that keeps film in the public domain from reaching the public realm. On the film, he tells MTR, «The battle over digital public space is gradually being lost by communities and users, and won by corporations and rogue billionaires. If I were a billionaire, I’d buy the entire Getty archive and put it online for free. I’m not, so this film is the best I can do.»

A History of the World According to Getty Images Richard Misek
A History of the World According to Getty Images, a film by Richard Misek

Domain v. realm

The vast majority of the filmed images all of us have seen – from scenes from Market Street, San Francisco, shot just days before the calamitous earthquake of 1906 that razed much of the city to the ground, to the atomic bomb test at Bikini Atoll in 1946 – have either entered the public domain after their copyright has expired, or were in the public domain from the moment they were shot.

So, why then is it that a series of short Getty preview files – shown in the first few minutes of Misek’s succinct film will cost a filmmaker between $41,000 (for a short film) and $160,060 (for a feature film)? And that is not to mention the $53,616 that Getty would charge for a documentary film, though the point between short and documentary is, presumably, a matter determined by the Chief Financial Officer of the giant image company.

Well, that is because the public domain and public realm are two different things, Misek explains after his short preamble with numbered and Getty watermarked preview files float in images from yesteryear across the screen.

the public domain and public realm are two different things

Seen before

He chooses eight famous and less well-known clips – all of which he licensed from Getty for his film – to explore what public domain means and why it rarely translates to freely accessible images for the public realm.

He starts with those scenes from San Francisco: A Trip Down Market Street, shot on April 14, 1906, by the Miles Brothers, who had a studio on the street and were early pioneers in filming «actuality» – a kind of predecessor to the newsreels that were soon to become a staple of 20th-century media.

All kinds of vehicles, motorised or horse-drawn, mill about in the clip, shot from static points at various sections on Market Street. Curious passersby pause to stare at the relatively new-fangled contraption being used to film. Elegant Edwardian ladies clutch at the skirts of their flowing gowns as they step through the dusty street. Some of these people would be dead within days, and most of the buildings on Market Street – including the Miles Brothers’ studio – would be in ruins after the San Andreas fault split asunder beneath the city. Popular books of photographic images shot after the quake show the devastation. (They are quite rare and pricey, now – although recently, I picked one up for just €10 at a Parisian flea market.)

A couple of days after shooting the images, two of the brothers left San Francisco for the arduous train journey to New York – taking the film with them. Halfway there, they received news of the ‘quake and turned back. But the film stayed on the train to reach distributors in New York. The images were shown around the country to a nation in shock at the West Coast tragedy and earned the brothers $30,000.

Eventually, it fell out of copyright and entered the public domain. Today, spliced up into sections of various lengths, it will cost you between a few hundred and several thousand dollars to license from Getty Images.

The reason for this, Misek explains, is that public domain is a term that merely means there are no longer any legal constraints over the use of the film. Once in the public domain, anyone who holds the images may charge a fee for licensing them. Most films of this kind have long been in public or private archives. Both may charge a fee for their use. Being in the public domain does not mean they are freely available for use in the public realm, although, as Misek’s clever film shows, there are ways to return such clips to the public realm.

He uses other images to illustrate his point further: the destruction of the German airship, the Hindenburg, in New Jersey in May 1937; US astronauts on the moon during the Apollo 14 lunar landing; villagers in Cambodia apparently waving (or are they holding their hands aloft in surrender?) as a US armoured unit thunders through their dirt roads.

Some of these images – including anything ever filmed under US government auspices, all of which is in the public domain from the moment it is produced – should be freely available. But they are not. Getty licenses a combination of films under copyright and in the public domain. It is free to charge for both types of film. One company, Critical Past, only deals with US government footage: its entire business model is based on charging for freely available material that was never copyrighted. Indeed, even when the copyright expires, all an archive needs to do is nothing. It can continue charging for licensing it, even though it is now in the public domain.

You can pay Getty or Critical Past for the lunar landing images – or download them free of charge from the NASA website. NASA is one of the few public bodies in the world that both produce public domain images and put them into the public realm via its website.

A History of the World According to Getty Images Richard Misek
A History of the World According to Getty Images, a film by Richard Misek

Ingenious and legal

Misek is reasoned but indignant about this 21st-century version of the land enclosures of the commons centuries ago. He wants to free these caged public domain images. His solution is as ingenious as it is entirely legal: he takes the massive image rentiers on at their own game. The eight clips that make up the substantive portion of his 18-minute short film have all been paid for. Getty’s licence forbids the onward use of each individual clip, but it cannot control their further use within a newly created work: a short film, for example.

The film is still touring festivals, so for now has limited online availability. It is available on the film’s website only when it’s playing at a festival (you can see upcoming festivals listed on the website). It will be made freely available online in July.

You can thumb your nose at Getty as you watch it.

A History of the World According to Getty Images screens as party of the HUMAN idff Oslo Just Human programme

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Nick Holdsworth
Nick Holdsworth
Our regular critic. Journalist, writer, author. Works mostly from Central and Eastern Europe and Russia.

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