Polaroid Collection: Update 2

I write this on the eve on the August 27 Minnesota Bankruptcy Court hearing that may determine the fate of the Polaroid Collection. As you read this, the hearing is likely underway. Our man in St. Paul, George Slade, former director of the now-defunct Minnesota Center for Photography, has agreed to attend the hearing and draft an exclusive online report for this blog, which will appear as a Guest Post shortly after I receive it.

U.S. Bankruptcy Court Seal

Here’s the March 19, 2009 story from the Minneapolis Star Tribune about Bankruptcy Court Judge Gregory Kishel authorizing the appraisal by Sotheby’s of the collection. This appraisal forms the basis of the present motion to permit the auction of the collection by Sotheby’s.

Sotheby’s has committed itself to putting the collection on the block by June of 2010, which means that 16,000 photographs will get dumped on the market during the worst economic crisis since the Great Depression — a moment when the photo market, especially for photographers and works not yet in the pantheon, has taken a terrible beating. This doesn’t bode well for anyone’s auction record.

The venerable British Journal of Photography has apparently begun to track my posts on this situation. Here’s the BJP’s first report, “Iconic Polaroid Collection facing its end,” dated August 26, 2009. Their account contains a few errors and misinterpretations, as does mine (see below), but any publicity about the collection’s crisis can only help.

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I’m not a lawyer. I don’t even play one on TV. I assume it’s understood by this blog’s readers that my analysis of and advice in this situation do not constitute or substitute for the recommendations and actions of qualified legal counsel.

So I can’t certify that my interpretations of the pertinent laws are correct. And I don’t promise that the letters I’ve sent to the court and to Sotheby’s, and that I’ve urged photographers with works in the collection to send, will do any good at all. Can’t hurt, I figure — at the very least, it may raise some awareness of the situation and create the basis for a collective appeal if the hearing’s outcome proves disheartening. Here’s the list of those who’ve acted on this to date. [Note: If you have not sent in such letters as of today, August 27, 2009, please hold off on doing so unless I propose otherwise in a future post. See tonight’s post, “Polaroid Collection: Update 3,” for an explanation. — A.D.C.]

With that said, I am, so far as I can tell, the only commentator covering this story who has taken the trouble to obtain copies of and study the actual letters of agreement through which work entered the U.S. and European Polaroid collections. Also, to the best of my knowledge, these contracts were never placed before the court by counsel for Petters International or any successor entity claiming ownership of these collections. I have every reason to believe that no judge of any bankruptcy court hearing the various cases and motions has ever laid eyes on them, and have no indication that the court-appointed trustee and court-appointed receiver have any familiarity with these legal documents.

I may therefore know more about these contracts than anyone else presently active in the situation, excepting of course counsel for Petters International and its successor entities, who understandably don’t want these facts made public and widely known as they go forward with their plan to dismember and jettison the collection. I also assume the timing of said counsel’s filing of this motion in early August, with a hearing date in late August (a time when the entire art, photo, museum, and gallery world is pretty much shut down) wasn’t coincidental.

Polaroid One-Step camera

Based on my admittedly layman’s reading of these documents, they constitute non-exclusive subsidiary-rights licenses based on the exchange of either money or goods for those rights, not transfers of ownership. What Polaroid acquired by that exchange appears voluntarily restricted on Polaroid’s part to “the right to republish my image(s)” and/or “the worldwide non-exclusive rights for exhibition and editorial (non-commercial) publication purposes of the following images in perpetuity.” Since these letters of agreement and release forms originated with the Polaroid Corporation, we can reasonably assume that their terms represent what Polaroid sought to obtain from the photographers with whom they chose to collaborate in this way.

These licenses endure “in perpetuity,” as one of the documents states explicitly. Because they are non-exclusive, these licenses also grant the photographers the right to borrow the images for their own exhibitions, and to have copy negatives or scans made of them for reproduction purposes, “in perpetuity” — i.e., forever.

None of these rights-licensing agreements imply ownership. Indeed, “the worldwide non-exclusive rights for exhibition . . . purposes” implies just the opposite, since if you own a work of art you automatically have the exclusive right to exhibit it whenever and wherever you choose, unless otherwise stipulated. The only reason to request that right would be in a situation in which you don’t own the work outright.

Furthermore, this letter of agreement specifically solicits the licensing of “non-exclusive rights for exhibition and editorial (non-commercial) publication purposes.” These are, by definition, one-of-a-kind works. The only way in which exhibition and publication rights thereto can be “non-exclusive” is if someone else (the photographer) has the same rights, and can exercise them. If the photographer has the right to exhibit the one-of-a-kind object(s) worldwide, then he or she must have either retained full ownership or, at most, accepted joint ownership of the works in question.

Lucas Samaras, Samaras Album, 1971

In either case, by my reading, the Polaroid Corporation has neither sought nor acquired clear title to many of the works in the collection. It’s my understanding (based on conversation with legal counsel) that no court has the authority to strip from the photographers this portion of what they lent, donated, bartered, or sold their work to obtain as their end of the agreement with Polaroid. Permanent access to the work for the above-stated purposes constituted one of the benefits to the photographers of these legally binding agreements. Voiding such benefits invalidates the contracts, in which case the works in question should rightfully be returned to their makers. If Judge Gregory Kishel does void those contracts (he’ll hear the motion tomorrow), or any of his predecessors did so and he simply rubber-stamps their precedent, that may be judicially incorrect and subject to appeal.

Polaroid's Test Magazine

Here is a PDF file containing the four letters of agreement and other documents I’ve obtained so far. (More en route, I’ve been promised.) I’ve redacted them to protect the anonymity of the sources who provided them to me. In order of what I deem their relative importance, these are:

1. The “Polaroid Collection Release Form,” whose only significant clause licenses “the worldwide non-exclusive rights for exhibition and editorial (non-commercial) publication purposes of the following images in perpetuity.” This document bears the name of Trisha Krauss, representing the Polaroid 20×24 Studio in New York City. I’m told it was in use as the standard agreement for many years.
2. The “Photographer’s Release Agreement,” which solicits only “the right to republish my image(s) , as described below, that were submitted by me to Polaroid Corporation for use in the Test Magazine. I understand that my image(s) will be re-published on the worldwide internet via Polaroid’s Home Page, starting September 5, 1995 through May 1996.” [Note: Polaroid published Test Magazine as a giveaway during the ’90s. — ADC]
3. A March 9, 1998 letter indicating that Barbara Hitchcock, then curator of the Polaroid Collection, had chosen a work by a photographer for inclusion in the collection.
4. An undated statement about the “Polaroid Artist Support Program,” briefly describing the program. The words “acquire,” “purchase,” and “own” are conspicuous by their absence from this statement, which asserts only that Polaroid will “choose” work in return for materials, equipment, or time in the 20×24 studio. Indeed, the words “acquire,” “purchase,” and “own” appear in none of these documents.

If any of my readers have access to other contracts or letters of agreement with the Polaroid Collection, and other materials promoting participation in the collection, please send me scans thereof. I’ll post them here.

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I heart Polaroids necklace

A correction: I misread the evidence and spoke too soon when I asserted, in my August 13 post, that the approximately 6000 prints from the Polaroid Collections distributed between the Musée de l’Elysée in Lausanne, Switzerland (4500 prints) and La Maison Européenne de la Photographie in Paris, France (1500 prints) had permanently entered those collections and were thus safe in responsible repositories and exempt from this auction situation. According to a highly placed source, the prints formerly held by La Maison Européenne de la Photographie have already been requisitioned and returned to the U.S. for the anticipated auction, and the Musée de l’Elysée has reason to expect a demand for the return of its Polaroid selection at any time.

U.S. Bankruptcy Court plaque

This raises an obvious question: Who has an explanation for the discrepancy between the 16,000 works for which the PBE Corporation seeks auction permission from the court and the 22,000 prints that Polaroid’s own website claimed until recently constituted the entirety of the combined U.S. and European collections? That’s 6,000 prints gone missing . . .

In this regard, I should note that the page about the Polaroid Collections I just mentioned, to which I linked on July 16 at the Polaroid Corporation’s own website— www.polaroid.com/company_info/collection.jsp — has evaporated, though you’ll find many links to it on Google. In fact, many pages at that website that I viewed on July 16, the date of my original post on this subject, have vanished — for example, www.polaroid.com/studio/exhibit/index.html, also still listed in a Google search. (Here’s a PDF file of Google’s cached version of that page, just to prove I’m not dreaming it up.) This suddenly “disappeared” material includes pages on the 20×24 camera, various exhibitions featuring Polaroid images, pages about several artists who use Polaroid, and more. Someone’s cleaning house and scrubbing the joint. I regret that I didn’t think to create PDF files of these pages before they were removed.

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For an index of links to all posts related to this story, click here.