LA+ MEDIA: Nina Lager Vestberg on the Digital Commons

The word “media”—the plural of “medium”—is from the Latin medius, meaning “middle.” Since the 19th century, the term has pertained broadly to anything that is a means of transmission or communication. However, media are not simply neutral channels that transmit content created through other means, as the contributors to LA+ MEDIA, the latest issue of Weitzman's interdisciplinary journal of landscape architecture, demonstrate.

Nina Lager Vestberg, a professor of Visual Culture at NTNU, the Norwegian University of Science and Technology, explores the distinction between the public realm and the public domain concerning public domain images that have been effectively privatized through licensing by institutions like Getty Images. Arguing that there is no such thing as a free image, she proposes tactics of “information preservation” as a form of public service to reclaim these works.
 

Grazing the Visual Commons

In a short film entitled A History of the World According to Getty Images (2022), filmmaker and academic Richard Misek presents a montage of archival footage that forms a representative roll call of historical events from the extended 20th century.¹ The first five minutes consist of so-called preview clips from newsreels, each somewhere between three to ten seconds in length, roughly covering visually recorded events from World War I to 9/11. These clips carry a digital Getty Images watermark superimposed across the frame. At the end of this introductory sequence, an intertitle appears, listing the cost to license these clips, without watermarks, from the commercial archive. The second part of the film comprises eight longer clips licensed by the filmmaker from various sources – mostly, but not exclusively, from Getty Images. As his voiceover points out, all these films had to be licensed for use, despite being “in the public domain” and thus no longer subject to copyright. Throughout the rest of the film, the voiceover, which otherwise provides historical context for each reel, repeatedly emphasizes a paradox: films that are no longer anybody’s intellectual property nevertheless remain somebody’s physical property and often stay “hidden behind paywalls” instead of being made “freely available.” Over the last of the eight segments, Misek states that his intention in splicing these clips together and sharing them online has been to “release them from captivity.” By appropriating the films of others in order to create his own film and making it freely available to stream or download from its own dedicated website, he ensures that “these few clips,” already in the public domain, are also “at last, in the public realm.”

Misek’s film addresses the literal contradiction between “public domain” and “public realm,” terms that are theoretically synonyms but practically distinct.² The first term designates the legal status of intellectual property that has either outlived its copyright term or never been copyrighted (as, for instance, applies to films and photographs produced by the US government). From a legal viewpoint, such works are freely available for anyone and everyone to enjoy or exploit as they wish. The second term is used by Misek to describe the scope of real-world access, as opposed to theoretical availability. The difference between the two concepts can be exemplified by a sculpture displayed in a public place, which is freely accessible and thus in the public realm. However, if it is recent enough to be covered by the relevant copyright legislation, it is probably not in the public domain. Conversely, another sculpture may be long out of copyright and in the public domain, but if it is stored in a private space with restricted access, it is not in the public realm.

The core argument of A History of the World According to Getty Images appears to be that any organization or individual in possession of “content” of any kind, which has either been produced with public funding or fallen into the public domain after its copyright term has lapsed, should make this content openly accessible to anyone, preferably via the internet.³ This view aligns with conceptions of “the digital commons,” which Graham Murdock defined in the early 2000s as “a linked space defined by its shared refusal of commercial enclosure and its commitment to free and universal access, reciprocity, and collaborative activity.”⁴ Misek’s decision to release his film (composed of other people’s films) through an openly accessible website, is consistent with the practices of what McKenzie Wark termed “the hacker class” of creatives and researchers. This group resists the efforts of corporations and institutions to commodify and monopolize the fruits of their intellectual labors.⁵ Getty Images is a prime target for critiquing commercial enclosures, as it is a paradigmatic example of the class of commercial “internet intermediaries” that host and circulate visual content. These intermediaries “have become adept at co-opting and commodifying” public-domain content, alongside the copyrighted material they manage on behalf of rights-holders.⁶ As Misek notes in a working paper that expands his critical engagement with Getty Images, the company is the world’s largest commercial archive and has been operating “the best platform in the business” for more than 20 years. This platform enables the digital accumulation, extraction, and transmission of still and moving pictures.⁷ Thanks to its vast collection, the precision of its search-and-retrieval mechanisms, and streamlined downloading and licensing procedures, Getty Images has established a “chokepoint” hold over both suppliers and buyers in the contemporary pictorial economy.⁸

However, what is missing from the filmmaker’s articulation of the paradox—that works in the public domain are not automatically in the public realm—is an acknowledgment that “images,” whether they be government-produced documentary film clips or commercially produced creative stock photographs, do not exist unfettered from some sort of material substrate. Misek implicitly acknowledges this fact by comparing the digital platform for accessing an image to the land on which a building stands: “Not having access to the land around a property is just as great a barrier to access as being locked out of the property itself.”⁹ This analogy is true, and it highlights that looking after the land on which a building stands is crucial to the continued preservation and accessibility of that building. Land management is integral to the stewardship of buildings, whether it involves stopping vegetation from blocking entry, draining water away from walls, or felling trees before they grow large enough for their roots to cause subsidence. And, as Shannon Mattern reminds us, buildings themselves “call for different modes of upkeep, preservation, or conservation,” depending on their age, style, and material composition.¹⁰ Arguments against charging for the use and re-use of works in the public domain tend to prioritize content while disregarding the material containers of that content; the records that enable us to store and share ideas, images, or information in the first place. Preservation is simply another word for transmission, and vice versa.

In the case of historical photographs and footage, the contents of which are in the public domain, it is somebody’s job to maintain both the physical records (plates, negatives, and reels, if they still exist) and the bricks-and-mortar archives that house them. Trevor Owens, an information scientist and digital preservation scholar, refers to this as the artifactual framework of preservation, which aims to maintain the “historical contiguity of a tangible object.”¹¹ For public-domain materials that have been digitized, somebody had to scan, annotate, and save them in suitable file formats for storage and distribution. In doing this work, they will have served the purpose of informational preservation, as Owens terms it, where the materiality of the original medium is irrelevant as long as “the information encoded on the carrier” has been faithfully copied.¹² Finally—or rather, forever—it must also be somebody’s job to maintain the servers on which such digital files are stored, update the software enabling them to be read, distributed, and retrieved, and ensure a stable power supply. Digital media require constant “updating to remain the same,” in Wendy Hui Kyong Chun’s memorable phrase, while Owens warns that “[n]othing has been preserved, there are only things being preserved.”¹³ If no one takes on the task of maintaining and preserving the public domain, there will be precious little left of the public domain to share in the public realm. And if we do not want to leave that business up to the likes of Getty Images, it will be necessary to both find and fund an alternative. In short, we need to close the metaphorical and material gap between the public domain and the public realm by means of a public service.

The notion of public service, primarily developed in the context of broadcasting, can be understood in three different ways: first, as an infrastructural service comparable to a public utility; second, as a support mechanism for the public sphere, understood as “institutions in which members of the public take part as citizens and collectively make decisions for the common good”; and third, as a service the primary function of which “is to satisfy the interests and preferences of individual consumers.”¹⁴ Media scholar Trine Syvertsen observes that public service broadcasters have been particularly keen to conceptualize their functions in terms of the second point, while increasingly performing them in accordance with the third.¹⁵

Comparable public service institutions in the cultural memory and heritage sector grapple with the same tensions. Public museums wishing to digitize their collections “for the common good” often rely on short-term projects and funding streams. In practice, this leads them to prioritize material that aligns with the interests and preferences of individual benefactors or funding schemes. Alternatively, they may feel compelled to share everything online in a bid to demonstrate their value to the public, potentially disregarding their ethics of care toward those represented in the collections.¹⁶ Creating a public service distribution network for public-domain images would likely face similar dilemmas. To succeed, it would need to resolve these challenges to a similar degree of satisfaction as existing public heritage institutions and public service broadcasters. The greatest challenge for such a network would in any case be how to fund itself as a public service in the first and infrastructural sense of the term. As Syvertsen notes, “the prime criteria of success are signal quality, efficiency of operations, and a distribution network that provides universal access.”¹⁷ Arguably, a utility of this kind already exists in the form of the World Wide Web, although it is far from being in public ownership. And even if it were, as Des Freedman observes in his wide-ranging reflection on the concept of public service, “public ownership, even where it is conceived and operated as common property held in the public interest, cannot exist as an island of socialism in a sea of capitalism.”¹⁸ The non-profit Internet Archive certainly models a web-based public service that facilitates access to public domain materials in the public realm, but it relies on a philanthropic funding model, which Freedman argues is capitalism’s preferred hypocritical method of paying lip service to public virtue.

From the viewpoint of public service media organizations, Freedman observes that “[t]he public remains all too often a passive component, conceived either as a ‘bewildered herd’ in need of grazing, atomised individuals in need of a shared culture, consumers in need of immediate satisfaction or members of distinct social groups in need of recognition.”¹⁹ Perhaps the most pragmatic solution is for members of the public to take a more active role in feeding the public realm from the pastures of the public domain. In A History of the World According to Getty Images, Misek demonstrates one way to do it. The film is an exemplary exercise in informational preservation, as defined by Owens: It has moved the content of the films he has licensed—as well as that of the watermarked preview clips shown at the beginning—into a new format. In this way it helps preserve part of the same visual heritage in another part of the internet, and potentially elsewhere, if viewers follow his lead (I, for one, have a copy of the film stored on my personal hard drive). The sequence of watermarked clips also serves as a form of artifactual preservation, as it preserves the watermarked “items” specifically housed in Getty’s archives.

This may be the most effective way to preserve public-domain images (still or moving) residing in pictures and footage held in private collections: to copy them as an act of informational preservation. We can justify this act of appropriation by contributing our own resources (hardware, software, power supply) to their continued circulation in the public realm, thereby supporting the establishment of visual heritage preservation as a de-centralized public service. There is no such thing as a free picture.²⁰ Whether still or moving, analog or digital, the question remains: how do we want to pay for it? The answer is both political and practical, depending on whether one views maintenance and preservation as forms of public service or as opportunities for private enterprise.

1) Richard Misek, A History of the World According to Getty Images [2022], https://www.ahistoryoftheworldaccordingtogettyimages.com (accessed December 6, 2024).
2) See, for instance, Richard Sennett’s classic account, in which the terms public domain, public realm, and public sphere are used interchangeably: Richard Sennett, The Fall of Public Man (W. W. Norton & Co., 1992), 16–27.
3) For an astute overview of what the term “content” means in contemporary discourse, see Kate Eichhorn, Content (MIT Press, 2022).
4) Graham Murdock, “Building the Digital Commons: Public Broadcasting in the Age of the Internet,” in Gregory Ferrell Lowe & Per Jauert (eds), Cultural Dilemmas in Public Service Broadcasting (Nordicom, 2005), 227.
5) McKenzie Wark, A Hacker Manifesto (Harvard University Press, 2004). In academia, this anti-institutional movement has arguably institutionalized itself in recent years, through the widespread adoption of open science protocols and open access publishing requirements from research funding bodies.
6) Bethany Klein, Giles Moss & Lee Edwards, Understanding Copyright: Intellectual Property in the Digital Age (Sage, 2015), 62.
7) Richard Misek, “Getty Images: Copyright Hawk or Corporate Appropriator?” CREATe (25 January 2024): 2, 5, https://zenodo.org/records/10566640.
8) Misek, “Getty Images,” 6.
9) Ibid.
10) Shannon Mattern, “Maintenance and Care,” Places Journal (November 2018), https://placesjournal.org/article/maintenanceand-care.
11) Trevor Owens, The Theory and Craft of Digital Preservation (Johns Hopkins University Press, 2018), 15.
12) Ibid., 19.
13) Wendy Hui Kyong Chun, Updating to Remain the Same: Habitual New Media (MIT Press, 2016); Owens, The Theory and Craft of Digital Preservation, 5.
14) Trine Syvertsen, “The Many Uses of the ‘Public Service’ Concept,” Nordicom Review 20, no. 1 (1999): 7.
15) Ibid.
16) See, for instance, Temi Odumosu, “The Crying Child: On Colonial Archives, Digitization, and Ethics of Care in the Cultural Commons,” Current Anthropology 61, no. S22 (2020): S289–302.
17) Syvertsen, “The Many Uses of the ‘Public Service’ Concept,” 6.
18) Des Freedman, “Neither Private Property nor Public Service: Critical Reflections on the Conceptual Framework of Public Service Media,” European Journal of Communication 39, no. 5 (2024)
19) Ibid., 481.
20) For the long version of the argument contained in this statement, and a great deal more on the exploitation of images in the public domain, see the open-access book: Nina Lager Vestberg, Picture Research: The Work of Intermediation from Pre- Photography to Post-Digitization (The MIT Press, 2023), https://direct.mit.edu/books/oa-monograph/5595/Picture-ResearchThe-Work….