[in]Transition

For me, the best video essays reveal that which can’t be easily detected when watching a work. This revelation might be formal elements about a specific moving image text, or maybe the stylistic relationship between a group of texts, or even, as is the case with Richard Misek’s 'A History of the World According to Getty Images', the underlying industrial and legal frameworks that bring the moving image text into existence (or not, as the case may be). 

I’m not going to summarize Misek’s work (you should just watch it!) but instead focus on some of the issues the work raises. The film investigates the thorny, murky, and—depending on your intellectual property politics—perhaps shady business of licensing public domain moving images. Misek focuses on Getty Images, one of the foremost licensors of public domain footage. 

Granted, Getty Images is largely in the business of licensing copyrighted works. In their business model, they function as a clearinghouse between filmmakers and photographers and those wishing to license those artists’ creative works. Getty’s other profit-center involves aggressively trolling the internet looking for infringers (those who use Getty-owned images or film clips) without a proper license and demanding payment or risk facing legal proceedings.

But what about public domain images or films?  How can Getty Images license works that are supposedly 'free'?  Well, like this: Getty acquires a copy of a public domain film. That work might be an early actuality (fallen out of copyright) or perhaps a U.S. government film (never in copyright). Getty then scans the film and licenses the work in the same way as something under copyright. In fact, Getty’s website obscures any particular work’s status by making no mention whether a particular work is in the public domain or not.  

Is this legal? Absolutely and has been thoroughly vetted in the U.S. court system (see Highsmith v. Getty Images and Cixxfive Concepts, LLC v. Getty Images). Once a work enters the public domain, it is free to be used in any way if (and this is a big if) you have a copy of the work. If you don’t have a copy, then companies like Getty Images can provide that work to you – for a fee, of course.  But what exactly are you paying for if the work is 'free'?  

You’re paying for two other valuable assets that Getty exploits: quality and security. Today, video essayists routinely work in 1080p or 4K and Getty Images supplies high quality scans from well documented, authoritative sources. In addition, licensing the work provides a layer of assurance. Determining the copyright status of any given work is time consuming, expensive, and requires considerable legal resources. Film and photography clearinghouses like Getty, in theory, perform due diligence to guarantee the works they license are 'cleared' of any rights issues (except when they don’t – see Steinmetz v. Shutterstock).

Misek’s work raises another key question: is Getty’s practice in the spirit of the legal doctrine of 'the public domain'? That question remains open for debate but the images used in Misek’s film make a compelling case to critique Getty’s business model. These images of key historical moments of the last century seem crucial to our cultural commons and Getty’s quasi-privatization of our culture’s prized visual artefacts seems at odds with the framers’ intent that copyright have limited terms. Once those terms expire, works were to be for the common good and not necessarily a corporation’s profit center.  

Misek’s work is not only about this issue but actively engages the debate by attempting to 'free' Getty’s footage back into the public domain. This act reminds us that every video essay is a political work. Why? Because the video essay as a form has always stood in a legal grey zone compared to other moving image works. Media conglomerates happily pay to license works (whether under copyright or the public domain) as a simple cost of doing business. At the other end of the spectrum, artists’ appropriation and transformation of copyrighted works often falls under fair use or, in the UK, fair dealing.  

But the video essay—born from digital technology’s ease of accessing, capturing, modifying, and redistributing moving image content—has always existed outside these systems. In earlier forms of scholarship and criticism, the work and the commentary about the work stood as two separate entities and thus negated legal issues of appropriation. However, the video essay’s rhetorical power lies precisely in the ability to fuse image and commentary together. And as Misek’s work points out, without the video essay’s ability to access images there can be no fusion with commentary.

Richard Misek’s 'A History Of the World According to Getty Images' compellingly and provocatively calls into question the role of commercial archives in controlling rightful public access to significant audiovisual documents in world history. Part 1 of his essay, 'A Preview of the Past', not only provides a brief overview of some of the most iconic historical events of the past century – the Hindenburg disaster, the Tiananmen Square massacre, the falling of the World Trade Center – but does so using preview images with the 'Getty Images' watermark intact. This use of the logo presents a dynamic interplay between figure and ground, where at times the brand seems to be the object of our spectatorial attention, while at others it functions as an obstacle to the true content. This unsettling dissonance is at the heart of the essay: that which ought to be public – records of our own history – have been appropriated by private entities. Like so much of neoliberal capitalist society, intellectual property serves as an instrument of power.

Part 2 of the essay delves deeper into questions of power, positing something like a 'capitalist gaze'. Recognizing that the very act of filming imbues the cameraperson with disproportionate power, Misek applies an analysis of power relations to the commercial archive itself. Here, control over the object of the gaze through licensing fees based on length of clips, quality of clips, and so on, ensures that only those who are most highly resourced can ever have full access, hardly a good faith effort to serve the public. As I watched the piece, I realized that I had never seen some of the historic clips in their entirety – a function, no doubt, of these licensing restrictions – and Misek’s inclusion of several of them in this film reminds us of the power of the moving image, now including videographic criticism, to operate as a form of protest and activism.