If you have work in either the U.S. or European Polaroid Collections, want to prevent the destruction of this world-famous archive via sale of its individual works at auction, and want to establish your claim to ownership of works you deposited in that collection on long-term loan, the time to act is now.
1. Join the campaign.
Per my previous posts on this subject of July 16 and August 13, on Thursday, August 27, 2009 the U. S. Bankruptcy Court in the District Court of Minnesota will hold a hearing on a motion from the current owners of this collection, PBE Corporation (formerly known as Polaroid Corporation), seeking permission to sell the collection at auction through Sotheby’s in New York. Presiding at the hearing will be the Hon. Judge Gregory F. Kishel, Chief U.S. Bankruptcy Judge, District of Minnesota.
Since publishing those posts, I’ve learned from informed sources that serious questions exists in regard to any claim to outright ownership by the Polaroid Corporation or its successors of much of the material in the Polaroid Collection. These questions have such significance that Judge Kishel of the Bankruptcy Court in the District Court of Minnesota should require that they get answered satisfactorily before granting permission to PBE Corporation to market the collection at auction through Sotheby’s.
2. Assert your ownership of your work to the bankruptcy court.
According to my sources, who were highly placed figures within the Polaroid Corporation specifically involved in the development of the collections, while it may be true that Ansel Adams and some of Polaroid’s early consultants donated their work to the Corporation, the ownership of the work contributed by artists from the late ’70s through the mid-’90s is not so clear. “Most of the work added during those years were not acquired at all — rather, Polaroid bartered for the exhibition and reproduction rights to those photographs in exchange for film and small fees. Ownership of the prints themselves were retained by the artists,” they explain. My sources indicate that they kept records verifying this, “including copies of the agreements with the photographers and artists.” These records are in their possession and can be made available for verification. Thus many of the prints that PBE Corporation has asked the court to authorize for sale by Sotheby’s are actually owned by the artists and not Polaroid.
The counter-argument presented by PBE’s bankruptcy counsel, I’m told by these sources, is that the artists had a chance to make a claim of ownership during Polaroid’s prior bankruptcy in 2004 and that, if they didn’t, they lost all legal claims to their own work. This strikes me as entirely specious. My sources “question whether possession on loan or with licensed usage of a work of art can be considered a debt owed to the artist and subject to bankruptcy regulations.” From what I understand, the contention that somehow the artists relinquished any rights to the works in question by not demanding them back at the time of the original bankruptcy proceedings will prove difficult to sustain.
3. Prevent the auctioning of your work.
Were the artists notified of the situation and given an opportunity to reclaim their works? Were they given clear instructions on who to contact for that purpose? Were they warned that failure to do so would constitute surrender of their rights? It’s standard procedure in bankruptcy proceedings to create a list of creditors, notify all of them of the situation, give them a time frame and deadline for filing a claim, provide a standard format for that claim, and indicate the official address to which to send that claim. Patently, the Polaroid Corp./PBE Corp failed to do any of that. How then were the artists to know what to file, and where, and when, and with whom, in order to reclaim their works?
4. Make your claim to your work public at this blog.
Given this situation, I strongly urge any artists with work in either of the Polaroid Collections (U.S. or European) that was not purchased outright by the Polaroid Corporation to proceed as follows:
- Immediately send a letter (certified, return receipt requested) to Judge Gregory F. Kishel of the U.S. Bankruptcy Court in the District of Minnesota, asserting your claim to ownership of your work(s) in this collection according to your contract with the Polaroid Corporation, and objecting to any sale thereof at auction as a result of dispersal of the collection. if you have ready access to your contract or letter of agreement with Polaroid, include a photocopy thereof.
- Send a copy of the same letter to Denise Bethel, Director of the Photographs Dept. at Sotheby’s (also certified, return receipt requested).
- Then send me an email indicating that you’ve done this. I’ll create a page at this blog listing those who’ve taken this course of action.
- Click here for a PDF file of a draft of this letter, the text of which you can copy and paste into a file with your own letterhead. The draft contains the names and addresses of the two recipients suggested.
- Click here for the Polaroid Corporation/PBE Corporation motion requesting permission to proceed to engage Sotheby’s for this sale. This motion contains what purports to be a complete list of all photographers represented in the collection. You’ll find the list about one-third of the way through the document, in a section of Sotheby’s contract with PBE titled “Schedule I: Polaroid Collection Listing.”) You should find your name there. If not, send the letter anyway, indicating that you have work in the collection despite the absence of your name from that list.
5. Spread the word.
I have sent letters of my own to both parties, as a member of the community of researchers, scholars, and others who view the Polaroid Collection as an invaluable resource and oppose its destruction through piecemeal sale. In this letter I also voice my support for an inquiry into the legal status of the works in this collection, which per the contracts and/or letters of agreement by which they entered the Polaroid collection may in fact still belong to the photographers or their estates.
- Click here for my letter to the Hon. Gregory F. Kishel, Chief U.S. Bankruptcy Judge, District of Minnesota.
- Click here for my letter to Denise Bethel of Sotheby’s.
I urge my colleagues in the academic and research communities to follow suit with their own letters opposing the dispersal of the collection at auction. Feel free to copy and revise my text to make it your own. And I again urge any photographers whose work did not enter the Polaroid Collection through outright donation or direct purchase to object to this motion and lay claim to the work by immediate correspondence with Judge Kishel of the U.S. Bankruptcy Court in Minnesota.
— A. D. Coleman
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For an index of links to all posts related to this story, click here.
Thank you for this, Allan. I have been so busy securing my new factory I have taken my eye off of this ball. I will certainly do what you recommend.
Thank you, Allan, for posting this important information. I have 2 pieces in the Polaroid Collection that were acquired in the ’80s in exchange for film. I will definitely look into this closer.
Allan,
Thanks for this heads-up. I have been informing people like Witkin that his works, amongst others, are involved.
Good work.
Brad
I never entered into any written agreements with Polaroid and as such have insisted on the prompt return of my works from the surviving entity. This proposed sale is outlandish, and I will be happy to join in any class-action lawsuit brought to force the return of our artworks by the purchasing entity should it be approved.
Thank you so much for posting and researching this important issue. I am working of sending out letters on behalf of my father’s work as well as my own. They have 18 of mine and 5 of Todd’s . . .
Thanks, Allan. I gave Polaroid a fair amount of work “in trade” for time in the studio and materials; and I was never notified about anything during the earlier bankruptcy proceeding. And, like others, I don’t think there was ever a written contract.
I will follow through as you recommend, but it would be a huge effort (and expense) on someone’s part to identify and return the work to so many artists…
Doubtless it would take considerable effort (and expense) to return all the work. However, if the bankruptcy court becomes convinced that the PBE Corporation doesn’t own much of the work then they certainly can’t authorize them to sell it. That then forces the court and the PBE Corporation to seek a third course.
I don’t think anyone represented in the collection feels any sense of obligation to the PBE Corporation, an entity thrice removed from the original Polaroid Corporation that sponsored that work. The PBE Corporation had no involvement in the creation or development of the collection, and clearly has no interest in the collection.
They can’t wait to get rid of it, in fact, to settle other debts; and they don’t care if this effectively destroys a unique archive of contemporary photography. Speaking as a member of the photography community, it would take a sense of loyalty even more exaggerated than my own to feel in any way beholden to them and their shareholders.
I’d wager that most of those with work in the collection would indeed donate it — if they were assured that it would stay in a permanent collection of Polaroid photography, secure in a recognized, responsible institution. So the “third way” would involve identifying such a repository and, with the approval of the photographers and/or their estates, transferring the collection there, either in toto or in large part.
The PBE Corporation does in fact own some of the work in the collection — that which was donated, and that which was purchased outright. Perhaps the new institutional home for the collection would seek to purchase those works (or at least representative samples of them). Perhaps they’d leave those for the PBE Corporation to auction. But the bulk of the collection would remain integral.
I’d assume the documentation of the collection, the related correspondence, etc., would come with it. So, as an archive, it would remain available and coherent, if not intact.
That can’t happen if the court approves the auction. So preventing that takes priority here. Having artists in the collection assert their claims of ownership may force the court to consider the situation seriously and not make a quick decision.
I can’t help but think a financial institutional grab may be difficult this year or next or by 2012, but I agree it would be great to see it happen.
In the meantime, any photographers who are aware and may have friends that do not know… I am currently posting this twice a week on various pages like FB to try and raise awareness.
Allan,
Thank you for sending this out, a few had received your post and some did not.
My letter is in process and on its way. I am only a small player, but the Collection needs to be kept as a whole.
Jan Pietrzak
I’m getting the word out on Twitter, A.D. There are a lot of Polaroid enthusiasts on there; hopefully some rights holders can step forward to help.
While this is really important, I note from some respondents that they “traded” their work for film, studio time etc. Surely if they “traded” their work then it is no longer their own — and PBE will argue that. So if a class action is brought, those who have traded should be excluded from the action, so as not to devalue the argument of those who genuinely loaned their work to the collection.
Nicholas Cooper is both right and wrong. I have now received examples of several versions of the letters of agreement between Polaroid and the photographers in the collection, with several more promised on their way. I will start to post those shortly. These varied slightly over time, and also varied slightly depending on whether the work was acquired by the U.S. or European collection.
In some cases the letters specified transfer of ownership. In others they specified participation in a “barter program.” However, the two forms I’ve seen that the photographers actually signed specify, in one case, that they had received “consideration” from Polaroid and in return were “grant[ing] to Polaroid Corporation the right to republish my image(s) . . . on the worldwide internet via Polaroid’s Home Page.” In the other case, the only clause reads “I hereby grant to Polaroid Corporation and its companies, the worldwide non-exclusive rights for exhibition and editorial (non-commercial) publication purposes of the following images in perpetuity.”
Neither of these clauses constitutes a clear transfer of ownership. These are licenses for subsidiary rights — not donations, not purchases. Even if they gave the Polaroid Corp. clear title to possession (which I don’t think they do), the second clause reserves to the photographers “the worldwide non-exclusive rights for exhibition and editorial (non-commercial) publication purposes . . . in perpetuity.” This means that, under these agreements, the photographers enjoyed the right to borrow their works for exhibition purposes, or to have copies of the works made for publication purposes, “in perpetuity” — i.e., forever.
Thus, whatever the court rules this exchange to have been (loan, barter, sale, donation), part of the value many of the photographer received in return for granting possession of the work to the Polaroid Corp. was the right of permanent access to the work for exhibitions and publications. The PBE Corporation is asking the court to rule that the collection belongs to them “free and clear of liens, claims, encumbrances and interests.” In other words, they’re asking the court to void this aspect of the contracts. That’s because neither Sotheby’s nor anyone else could market these works with those strings attached. Thus getting the court to actually examine the letters of agreement becomes crucial — which is why I wrote to the court myself, and why I’ve urged people to submit claims.
Thank you for presenting a template/letter for retrieving our works, and asserting the legal fact that the artists, not the Polaroid Collection, “own” our works in that collection because film, not money, was used to “buy” our photographs.
Today, I’m using your template/letter.
Erica Adams’s comment misstates my argument somewhat. See my next post, Polaroid Collection: Update 2, for details. Nonetheless, I think it’s a good thing that she and others are taking action in this situation.
Thank you for taking this on. No one else would have handled it as thoroughly as you.
Much appreciated. The thought of this incredibly important collection being destroyed is really sad. I can’t imagine why any major museum (MoMA or even the ICP) wouldn’t step up & acquire it.
My letters are being sent today (hope it’s not too late).
Thanks for your encouraging words, Barbara. Let me return the compliment. I wouldn’t have gotten on this story as early as I did, or perhaps at all, if (as one of this blog’s first subscribers) you hadn’t alerted me to the situation and sent me a link to the April story from the Minneapolis Star Tribune. Nobody else contacted me about this, and I might well not have found out about it on my own. I think the community owes you a rousing cheer for recognizing the significance of the news report and putting me on the case.
Thank you, Allan, for the care and attention you have brought to this. I will not be able to get the letter out immediately but will try my best.
I support the return of the work to the artists. I am sure the works were never made for the financial benefit of some distant third or fourth party. It was my understanding that the work would be placed on permanent loan in the Polaroid Collection.
Assuming this can be fought successfully, there is also the “What next?” question. If a museum or other entity buys the work, I would like to have an opportunity to decide at such a time whether or not to allow the work to remain in the collection. Naturally there is every good reason to say yes, but it also depends on just what institution or entity makes the request, where are they located, and what they represent relative to the original purpose of the collection.
On that note, there is also the issue that Polaroid chose the cream of the crop of any piece we made as their top choice to represent the loaned piece for the Polaroid Collection. We trusted Polaroid to hold on to these unique, one-of-a-kind “best of the lot” works in their collection for our use throughout our careers for exhibition, publication, and support of the Polaroid brand.
To my mind, Polaroid, in turn, was generously using their materials via artists (not traditional commercial photographers in those days) in the loan program to build a collection of the best possible examples of artistic creative imagery they could have on hand to tout and to enhance the brand as a major creative tool in the broad marketplace. We made this work for Polaroid believing we could be part of that creative energy.
It was all between us and Polaroid, a loan of our best creative efforts to help build the brand that believed in creative photography like no other corporation before them, or likely after. Now, with Polaroid out of existence, the purpose of the program goes down the drain. Sixty-second excitement? Not so fast, we can all say given these developments.
Again, thank you for your remarkable involvement,
Arno
I would like to keep the Polaroid Collection complete; otherwise I would like to receive my work back, so that I can give it away to a museum, or bring it in any auction that I like, or whatever…
Please see tonight’s post, “Polaroid Collection: Update 3,” for what I’m afraid will prove to be the last word (and not a positive one) on the outcome.
Allan,
So today I got 2 lbs. of court docs; I will get back to you as soon as I can figure them out.
Hi all:
I can shed some light on some of this since I created one of the programs for Polaroid Corporation back in … um …1978. (Artwork by Ansel Adams and Marie Cosindas predates me. I believe they were commissioned and paid. The film/sheet for the 20×24 Polaroid Land Camera were still very experimental, and most of their shots were trashed.)
In early summer 1978, I left The Rephotographic Survey Project in Colorado to learn the tech&materials ropes with the 20×24, in order to create an artist program. I identified about 25 people who used that camera until I left under a corporate restructuring in 1981. My program was under the “Publicity” department (domestic only), totally separate from the pre-existing/ongoing program out of the Polaroid Foundation. Sam Yanes hired me.
The arrangements I made with the artists were by phone and letter. I invited them to come to Cambridge, all expenses paid, put them up at The Hyatt, wined and dined them, and taught them how to use the camera. I encouraged them to return several times, at Polaroid Corporation’s expense, so that they had one or more breathers in between periods of shooting.
My arrangement was that Polaroid gave the artists 40 sheets, in exchange for 4 final artworks. 40 sheets usually was a lot more than 40, because early on there were so many “T/Ds” that is, technical defects. The artists were able to use those T/D shots, uncounted in our trade, to help them develop/see what they were doing.
I talked extensively to all the artists about which photos Polaroid would keep. If I liked something that was possible to reshoot, I said so at the time, so we could each have one. At the end, I stated my preference, but deferred if the artist wanted to keep a picture. (It was never my intention or practice to keep the four best shots, as it seemed better that the artist use his/her best shots in shows unrelated to corporate sponsorship, but that is another story.)
Everyone I worked with knew before they started that the art they left with Polaroid was not for loan, it was in trade for 36 artworks he/she would take home and the opportunity to use the camera, which was such a crazy interesting thing to do.
HOWEVER, I left in spring or summer 1981, and there have been many other people working with artists at Polaroid Corp. I heard stories about other people’s arrangements, but during my days there, the idea was that both the artist and Polaroid would benefit, and I think that was the case. It was a new and unpredictable medium, with lots of problems. It was frustrating, and very very interesting.
Now, given the bankruptcy and changes, I agree that the collection should stay together, which was the spirit of the initial arrangement. Likewise, if it is sold, the work should be available to be seen, since part of the point (understood by both parties) was that the exhibiting that Polaroid was doing benefitted the artists, for example, at LIGHT Gallery and in American museums. Each trade was made in that spirit.
William Wegman’s cover of Artforum was the sort of success that the program fostered. That photo belonged to him. But Polaroid also sent work from its collection, including Wegman’s, to museums all over. NOT to commercial venues, with the justification (at least in the case of my early program) being that it was publicity, not advertising. I did not kept up after I left, but I sincerely hope this can be worked out to the artists’ benefit, while also honoring Polaroid Corporation. It was and is unusual — unique? — that a for-profit corporation would have such a strong ongoing commitment to contemporary artists.
It’s been very interesting to read all of these comments and clarifications about the current situation with the works in Polaroid Collection.
I worked with the 20X24 camera in New York, Boston and London (with the camera from Prague) from 1991-1998, eventually transporting the camera to numerous other cities as well to do projects with it. I made my work exclusively with the large camera during those years. Initially my use of it was through the Artists Support Program.
I can say for certain that there was never any paper exchanged in my use of the camera. If I could find one of the old thermal faxes I could probably be more specific, but the understanding was that in exchange for the use of the camera a certain number of prints from each session would be donated to Polaroid’s collection. I never signed anything. Ironically — in light of technological advances in the past decade or two — I don’t think anyone could foresee a day when Polaroid as a corporate entity wouldn’t exist, so the need for further clarification regarding ownership of the work wasn’t a thought. And now … here we are!
Thanks for all of your diligence and hard work on this situation, Allan.
I have quite a few pictures in the collection and was featured on the Polaroid site . . . thanks for keeping me updated on all this. My website, Let’s Get Lost, is all Polaroid images of Los Angeles, and quite a few are in the collection.
I will sign up and write a letter about the materials ASAP. This is the first time I am hearing about this nasty turn of events.
Allan
No letter needs writing at this point. I urge all readers to review all my posts on this subject to date, listed and linked sequentially here. Investigation of the possibility of filing a Motion for Rehearing continues; that will get announced in a new post here if the decision gets made to go forward on that.
I HAD SO MANY PICTURES in the collection, AND A POLAROID GALLERY UP OF MY LOS ANGELES ARCHITECTURE IMAGERY. When do you think this will be resolved? Jim McHugh
I will just add this to my previous post.
When I first had images selected into the Polaroid International Collection I was Living the Dutch West Indies. My 1st Polaroid experiments were with a SX70 camera doing manipulated Polaroids. This was in 1986.
Shortly after that I began to do image transfers. I bought a Daylab printer
making transfers from 35mm slides. One day I get a call from the Polaroid sales rep who was visiting the island, he had been told by someone at the company were I bought my film, that I was buying more polaroid film than the rest of the island combined. He came up to my studio and was quite delighted that I had the walls of my studio covered with Polaroid image transfers. He organized that I send some of my work to Polaroid. Several months after that I received a letter from Polaroid that i had several images selected for the Polaroid International Collection. Over the next year or so they sent me free film.I sent many more images transfer to them, Some collages with as many 36 transfers.
Hi Allan!
Thank you for this post! It was very helpful for artists like me, who have submitted a number of pieces in the Polaroid International Collection and is not aware of the situation. It’s a good thing that I was able to come across your website.
With the advancement of technology, we should always be aware on anything that we are signing up for. Just like any other artist, I have worked hard for my pictures and would want to receive the credit that I deserve and not be abused in any way.
Thanks again!
Summer