Polaroid on the Docket
August 27, 2009, St. Paul, MN — Maximizing profits appears to have won out over maintaining historic unity.
This afternoon, just before 2 p.m. Central time, discussion of the motion to sell Polaroid’s fine-art photography collection began, in front of the Honorable Gregory F. Kishel in U. S. Bankruptcy Court proceedings. Attorney George H. Singer, representing the debtor (Polaroid, Petters-ized), spoke for about 45 minutes, answered a small number of questions from Judge Kishel, turned the dais over to the opposing counsel (whose name sounded like “DiCorcia”) who expressed nothing more than that the committee she represented supported the debtor’s motion, and then Judge Kishel issued his ruling granting the motion in its entirety and authorizing the sale process to move forward.
Polaroid ColorPack II camera packaging
Courtroom 2A in the Warren Burger Federal building in downtown St. Paul was sparsely populated but dense with interest. Among the audience (as identified by attorney Singer) were the man who will lead the resolutions beginning next Monday (Stavner? Identified by the judge as having been “hanging around for months” in the courtroom), and two representatives of Sotheby’s — Mitchell Zuckerman, Chairman, Sotheby’s Financial Services, Inc. and President, Sotheby’s Ventures, LLC, sitting in the first audience row next to Denise Bethel, Senior Vice-President, Director, Photographs in the New York office. Sotheby’s appears to be one of the major beneficiaries of the ruling; they have already fulfilled a March 2009 court-authorized commission to assess the collection and now have received permission to arrange for a sale, with proceeds going to benefit the estate (the committee representing the claimants) and buyers’ fees to benefit Sotheby’s, per standard auction-house operating procedures.
SX-70 Necklace Charm
The assertion arose, early in Singer’s presentation, that, according to an initial survey, approximately 99% of the monetary value of the 16,000-item Polaroid fine-art collection resides in about 1700 items. Having revealed where the money is at, Singer had set the stage for the ultimate ruling, which was based on the fact that this collection represents significant money and is allegedly costing its owners nearly half a million dollars in annual maintenance costs. The need to generate income far outweighed the “sentimental” objections that had been filed to protest the motion; in his ruling, the judge affirmed that there was no contractual obligation attached to these assets that would link them as a collection.
The context of bankruptcy court was inhospitable to the tenor of letters received from such artists as Judy Dater, Bea Nettles, Joan Lyons, John Divola, Eileen Cowin, and Melanie Walker (for the trust overseeing hers and her father Todd Walker’s ongoing interests). Indeed, Judge Kishel chastised the writers in absentia for not having used his correct address, for using an outdated title, and for chiming in much too late in the process (though he admitted that he had been on vacation and out of his St. Paul office until yesterday). [Note: They used the title and address I provided to them, which I got from the court’s official website. My bad, I’m sure, Your Excellency. — A. D. Coleman]
Kishel labeled the objections “disingenuous” and overruled them with the further statement that the documents the writers supplied didn’t support the claims being made, and that the statute of limitations for disputing ownership had expired (and been made moot by an earlier bankruptcy proceeding).
"Rabble-rouser" A. D. Coleman
Singer and Kishel showed little respect for A. D. Coleman, either. Though acknowledging him as an established figure in the photography field, they observed that “A. C.” was not an artist, not included in the Polaroid collection, and that his goal, advancing a moral rights claim and principle, was, Singer said, to “rabble-rouse an army full of people concerned with photography.” Kishel suggested that all the letters received seemed based on a template and “voiced the same theory.” Singer said that the objections, including a letter by A. D. Coleman, were the result of an “orchestrated and engineered” campaign, and that Coleman suffered from a “misapprehension” of the laws in bankruptcy court. Coleman’s “altruistic concern was not well thought out on a legal basis,” Singer concluded, asking the judge to overrule all objections.
Chief among Singer’s arguments and oppositions to the written objections were the question of copyright. As Judge Kishel clarified, the Polaroid collection at issue in this hearing is a collection of physical objects, not licensing rights, and that documents, including one sent by Bea Nettles as an attachment to her letter, show that artists had, in fact, ceded ownership and title to the prints.
George Slade, 2008, by Marc Norberg
Furthermore, Singer and Kishel expounded, the fact that Polaroid underwent a prior bankruptcy, in Delaware nearly twenty years ago, means that all the company’s assets, including the fine-art collection, had been sold, free and clear of any claims or titles, physical or rights-based, that may have redounded to the photographers. [Note: Polaroid’s Delaware bankruptcy proceedings took place in delaware in 2002, not 1989. — A. D. Coleman] Roughly 200 images had entered the collection since that bankruptcy; these do not figure in the motion, and are not among the 1700 “auction items” being skimmed off the collection.
There is some small hope remaining, however, for those who would like to see the collection remain intact. There is no clear disposition of the roughly 14,300 less valuable objects, which remain in the hands of whoever runs Polaroid as of August 31, when Polaroid converts from Chapter 11 bankruptcy to Chapter 7. (Friday, August 28 is the last day for all employees, though some will transfer roles and become contractors.) Sotheby’s has, apparently, offered to serve as an agent for institutions that might want to acquire the collection. Although earlier attempts to find buyers, with the 1700 “cream” works still part of the bargain, met with no acceptable offers, the auction house now has the freedom to go through the entire collection and make unspecified further arrangements regarding the items it has been given permission to auction.
Thinking it will make a huge (14,300-piece) gift to some lucky institutional repository? Not likely; the court relayed the fact that Sotheby’s, a “superior auction house” (having nudged Christie’s aside), promises a “robust” ad campaign to secure significant funds, piece by hammered-down piece, for the sake of Polaroid’s creditors.
— George Slade
St. Paul, MN
George Slade is the former director of the Minnesota Center for Photography, and editor of the book Minnesota in Our Time: A Photographic Portrait (2000). He was the recipient of a Creative Capital/Andy Warhol Foundation Arts Writers Grant in 2007.
Text copyright © 2009 by George Slade. All rights reserved. Published by permission of the author. To contact George Slade, email him at georgeslade [AT] mac [DOT] com.
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“… the Polaroid collection at issue in this hearing is a collection of physical objects, not licensing rights …”
The day’s awful outcome aside, perhaps there is some very small consolation for the photographers represented in the collection given the above point. Still, it’s sad to think such a remarkable archive of 20th-century photography will most likely end up being picked over by so many vultures.
Wow,”The Gods that be have Spoken.” This is as juicy as it gets, like a well-worn novella: tucked away in a picturesque village of St. Paul, the adjectives drip like fresh honey in the name of sales. Forget the name of art, and it’s just better to forget the artist, something you learn while a student of law.
It’s hard to pick my favorite sentence or quote: Judge Kishel/attorney Singer went on quite a rip when first bringing to light “misapprehension,” “ceded ownership,” “correct address” . . . and the beat goes on, but to what end? I don’t think it’s over.
Perhaps the front-row seating of Ms. Denise Bethel, someone who I thought was more a champion of photography, is more about the sale and not the ownership of works created. I think Ms. Bethel will be in the front row for quite a while, though it’s not the front row or red carpet she dreamed of, now that there is this spotlight, like a shadow you can’t get away from.
It seems that Attorney George Singer has little respect for the artists in the collection. To imply that nearly 14,000 images are worth 1% of the collection’s total value is an absolute insult. His glib comments were offensive and inappropriate.
Actually, Singer asserted that in re to more than 14,000 images:16K total minus 1.7K as “cream” leaves 14.3K.
I have to assume that he based his assessment on the evaluation commissioned by Sotheby’s. Without seeing that evaluation I wouldn’t know how to gauge Singer’s assertion. (And I might not know even then; I don’t spend time tracking current market values and auction records for photographers, though now and then something draws my attention.)
While I don’t feel kindly disposed toward either Judge Kishel or attorney Singer, given their derogatory comments about me and the protesting photographers, it seems to me they were simply reflecting a judgment made by Sotheby’s re the marketing of the collection, which they consider strictly an asset of an indebted corporation, legally available for disposal to settle said debts. I don’t think they intended or implied any aesthetic or critical or historical estimation by their comments, and advise against reading them that way.
From my analysis of the documents submitted by the debtors in support of dismissing the objections I and the photographers raised, I conclude that the status of the collection changed drastically during the earlier bankruptcy hearing in Delaware in 2002. That’s the moment at which the collection was declared a mere corporate asset, free and clear of any liens, encumbrances, etc. If intervention ever had a chance at effectiveness, it got missed. Right then was when all contracts and letters of agreement with the photographers included were voided in relation to access to the works for exhibition and reproduction, permanent loan vs. transfer of ownership, etc. Not sure how this got overlooked at the time, but there — and here — we are.
I’m working on a wrap-up post about this situation. I’ve done a phone interview with the Boston Herald for a story due out next week. I assume the New York Times, Wall Street Journal, and others will follow up on earlier coverage, and the art press will no doubt pick up on it as things revv up in the fall. I’ll do periodic updates as the collection heads toward the auction block.
Interesting; as Polaroid went though bankruptcy in 2001, I don’t ever recall hearing anything about that. After emerging from bankruptcy it was sold and seemed to continue doing business as it had. If there was a behind-the-scenes transfer that voided all letters of agreement with photographers, shouldn’t there have been an obligation to notify those whose agreements were voided?
In any event, I guess the statute of limitations has run out.
I’m no lawyer, only a working commercial photographer. But for those photographers who have abandoned or lost physical access or physical ownership to their works — and who care about such things — it might help to *register* the copyrights to their works. Among other things, the new owners of the physical prints could easily (and wrongly) presume a license to exploit those copyrights. Tactical remedies available to owners who register their copyrights prior to infringement appear superior to scrambling to register *after* the horses have left the barn. Again, IANAL.
There’s a basic logistical problem that would make following your suggestion difficult if not impossible: To register copyright of anything (image, text, sound recording, whatever) with the Library of Congress Copyright Office, you have to provide a copy thereof to them. Since the works in the Polaroid Collection are by definition one-of-a-kind pieces, and since most of the photographers represented won’t have made either copy negatives or scans of them before depositing them in the collection, they can’t provide the documentation of the material necessary to register copyright thereof.
Among other consequences, therefore, the Minnesota Bankruptcy Court has deprived the photographers in the collection of their ability to register copyright to their works.
This was, in fact, part of the reason for the unusual agreements between the collection and the photographers — those contracts enabled the photographers to borrow their works from the collection for publication purposes, which would involve the making of copy prints, negatives, or scans that could also get used to register copyright.
With that said, I think it’s unlikely that “owners of the physical prints could easily (and wrongly) presume a license to exploit those copyrights.” Aside from reproduction in catalogues of exhibitions drawn from a collection, which is legally permissible, it’s extremely rare that either a private collector or an institutional collection violates an artist’s copyright by licensing subsidiary rights to works they own. I consider that fear groundless.
Moreover, in its decision approving the motion to allow the sale of the collection, the Minnesota Bankruptcy Court did affirm that the photographers retained copyright to their works, and that this sale would in no way constitute transfer of copyright or other IP rights. The court’s specific language: “… the Polaroid collection at issue in this hearing is a collection of physical objects, not licensing rights …”
And with that said, you’re absolutely right in stating that registration of copyright strengthens the copyright holder’s hand in any legal situation involving a rights dispute.
The artists don’t have any kind of reference copy at all for the wonderful artifacts they left with Polaroid? Ouch, I hear you about the logistical impossibility of registering: it’s enough to tempt an artist to sneak a camera into Sotheby’s and surreptitiously record his work!