Here is the link the NY Municipal Archives. The Archives does not claim to own the copyright on any or all of the images.
http://nycma.lunaimaging.com/luna/servlet

“Some of the images in the Online Gallery may be subject to third-party rights such as copyright…”

Here is the link to the Terms of Use.
http://www.nyc.gov/html/records/html/gallery/orderform.shtml

RIGHTS AND PERMISSIONS:

Please note that photographic prints are provided for personal use only and may not be transferred to another individual or institution without permission… If you wish to PUBLISH a photograph, or use it for any COMMERCIAL purpose, you must apply for permission and pay the appropriate license fee.

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Here is the Copyright Law on Archives making reproductions.
http://www.copyright.gov/title17/92chap1.pdf

? 108 ? Limitations on exclusive rights:
Reproduction by libraries and archives

(a) …it is not an infringement of copyright for… archives… to reproduce… or to distribute… if?

(1) made without any purpose of direct or indirect commercial advantage…

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The commercial limitation applies to ARCHIVES which may try to benefit commercially. They cannot SELL permissions and collect royalties unless they have a license to do that from the copyright holder.

It is NOT an infringement to copy and distribute, but it IS an infringement to AUTHORIZE.

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http://www.copyright.gov/circs/circ21.pdf

Reproduction of Copyrighted Works by Educators and Librarians

Senate Report: Discussion of Libraries and Archives in Profit-Making Institutions

The limitation of section 108 to reproduction and distribution by libraries and archives ?without any purpose of direct or indirect commercial advantage? is intended to preclude a library or archives in a profit-making organization from providing photocopies of copyrighted materials to employees engaged in furtherance of the organization?s commercial enterprise, unless such copying qualifies as a fair use, or the organization has obtained the necessary copyright licenses.

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http://www.copyright.gov/docs/regstat072204.html

Thus, vicarious liability requires two elements:
(1) the right and ability to supervise or control the infringing activity; and
(2) a direct financial benefit from that activity…

In the 1976 Act, Congress recognized secondary liability in the grant of rights under copyright, providing authors and copyright owners with the “exclusive right to do and to authorize” the enumerated rights. As the legislative history to the Act explains, “[u]se of the phrase ‘to authorize’ is intended to avoid any questions as to the liability of contributory infringers.”

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Going back to Copyright Law,
http://www.copyright.gov/title17/92chap1.pdf

(e) The rights of reproduction and distribution under this section apply to the entire work… made from the collection of … archives… if the… archives has first determined… that a copy… cannot be obtained at a fair price, if?
(1) the copy or phonorecord becomes THE PROPERTY OF THE USER…

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Compare this to the above Term of Service:

…prints… may not be transferred to another individual or institution without permission…

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Compare to this case:
http://blog.librarylaw.com/librarylaw/2010/07/cci-update-legal-action-against-a-cultural-institution.html

I also wonder how much the desire to run a photo reproduction permissions business and generate some revenue may have contributed to the museum?s seemingly sloppy practice.? Regardless of how the case turns out, the legal process is going to prove to be expensive, and if the Smithsonian should lose, it could face up to $150,000 in statutory damages per image.? $50 per image in licensing revenue hardly seems worth it if the desire to generate revenue led to the mistakes that appear to have been made.?

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See: ANNE PEARSE-HOCKER v. United States

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(1) … and the library or archives has had NO NOTICE that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research…

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In the above, there is NO authority granted to archives to ASSUME responsibility for the USE of a work.

Compare to the Library of Congress, where the following phrase is inserted into the standard copyright notice used for copy services:

http://www.loc.gov/duplicationservices/cond.html

“All responsibility for use of the reproduction is assumed by the applicant.”

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Collecting information about the USE of a copy, opens an archives up for secondary infringement liability,

And

violates state Privacy Laws.

What law authorizes the collection of this personal information – – how will the personal information be used, how long will it be kept, is it subject to freedom of information, etc.?

If 10 people sell their copies of an image on eBay, and 20 people obtained a copy of that image from the Archives, how will the Archives know which recipient violated the Restrictive Covenant? The Terms of Service are unenforceable, against public policy, and represents censorship.