Polaroid Collection: Update 4

Postmortem/Debriefing/Q&A

The August 27, 2009 decision by the U.S. Bankruptcy Court, District of Minnesota to allow the auction of the Polaroid Collection to go forward has attracted some press attention. Here’s a short piece by Georgina Adam in The Financial Times, with a quote from David Ross. Greg Turner of the Boston Herald has published two recent pieces on the situation: one on the court decision and one about the future auction. (The first of these quotes me, and mentions briefly the failed effort to intervene.) And the British Journal of Photography has continued its coverage. (A correction: The BJP has me attending the hearing in St. Paul, MN on 8/27. In fact, George Slade covered the hearing for Photocritic International. Still, they get most of it right.)

The court treated the Polaroid Collection as just another asset, no different in kind from the current debtors’ holdings of Nippon Polaroid Kabushiki Kaisha (NPKK) stock. Here’s the court’s decision on the motion to permit sale of those NPKK shares. We may not like to think of a unique repository such as this collection considered strictly in terms of its market value for debt relief, but that’s the obligation of a bankruptcy court, so the court simply did its job here. According to the court’s decision of August 27, some 1260 pieces from the collection will get auctioned in spring 2010.

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Some enduring questions, with my own untutored and speculative answers:

• Did counsel for Polaroid misleadingly present the collection to the Delaware court as unencumbered in 2002? Quite possibly.

Found Polaroids, edited by Jason Bitner (2006)

• Did said counsel, or anyone else at Polaroid, have some legal obligation to notify the photographers in the collection that the corporation sought unilaterally to abrogate their contracts? I would like to think so, but I can’t say. I certainly think they had a moral obligation to do so, but that counts for little in the business world.

• Did this one-sided, unannounced, and radical transformation of the terms of hundreds of legally binding written agreements constitute breach of contract — and, if so, did the photographers have any consequent rights to repossess their works? Seems that way to me, but I’m no lawyer.

• Is any of that actionable, at this late date? Perhaps, but probably not.

• Would that result in reversion to the terms of the original contracts? Unlikely.

Memories, by Lev Surovecs (2009)

• Did the court or any of its officers fail in their “due diligence” obligations by not demanding to review the contracts governing the individual works in the collection? I don’t think so. In its listing of the collection as one of its assets for the Delaware court, Polaroid offered no estimate of its value, indicating that it was still in the process of cataloguing it. (This too may have been deceptive; the court’s ears might well have perked up on hearing “600 works by Ansel Adams.”) Moreover, most corporate art collections evolve as the result of direct, uncomplex purchases from galleries and auctions and direct from the artists. Transfer of ownership is unequivocal; the accounting department has the bills of sale. Absent voluntary disclosure of complicating factors by Polaroid’s counsel, I wouldn’t expect it to have occurred to the Delaware court to suspect that this collection had been built on some very different premises, or that portions of its contents were bound by unusual agreements with the artists.

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Note: I have a friend, a retired Federal judge, who’s agreed to review the case and report on anything he finds amiss in all this. So stay tuned.

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• Did people at Polaroid beyond the company’s counsel, those connected to the collection, know in 2002 and thereafter that things had changed in this way? Unquestionably — how could they not?

The Polaroid Book by Barbara Hitchcock (Taschen, 2005)

• Did they have an obligation to spill the beans? No; as corporate employees, they had an obligation to serve their employer’s interests, so long as said employer acted legally, as was the case once the Delaware court approved the collection as an unencumbered asset.

• Did the art/photo press fail here? We perhaps should have looked at the court papers and the final judgment to see where that left the collection, in terms of the ongoing rights of the artists included. (I include myself, though I had no forum at that moment and don’t usually track such situations.) However, the collection was intact at that point, its curator was still in place, its location hadn’t changed, and rumor had it that buyers were being sought. Probably we could have asked some hard questions, and broken the story about the change of ownership terms.

• Did the artists fail themselves, by not informing themselves of the filings and the inclusion of the collection among the assets that the company sought to have defined as unencumbered? I suppose so. But this is complex legal stuff; few artists feel comfortable or knowledgeable in those areas, and most can’t afford legal advice in such situations.

• If the press and/or the artists had discovered this in 2002, and objected at that time, would they have been successful? Who knows?

For the Love of Light, edited by Jennifer Altman (2008)

• Why did no other institution seek to acquire the collection? I’ve heard from reliable sources that efforts got made to set up the transfer of the collection to at least two reputable and well-known museums — and that these efforts got scuttled by people inside the Polaroid Corporation. I can’t (yet) verify that. The very contracts and letters of agreement we admire for their artist-friendly aspects may have proved the undoing of any pre-2002 effort to transfer or sell the collection as whole to another institution with the various “non-exclusive rights” clauses in place. Speaking strictly as a prospective curator from another institution, would you want to acquire a collection — no matter how extraordinary — whose conditions required you to lend the works to the artists included for their own exhibitions upon (reasonable) demand, allow them access to the works for reproduction purposes on demand, and otherwise grant them something akin to droit moral “in perpetuity”? What a load of administrative and insurance-related headaches. I’d certainly think twice about that, and possibly pass on it, for that reason alone.

• Is Sotheby’s to blame for any of this? Not in any way that I can see. No auction house had any involvement with the 2002 Delaware case, in which the collection went unappraised. If I read the documents right, at that time the entire collection became a market-ready asset. With the Minnesota court’s approval in spring 2009, the current owners commissioned Sotheby’s to prepare an appraisal and propose the terms for a subsequent auction. Sotheby’s based its acceptance of this commission on the assumption that the Minnesota court would reaffirm the Delaware court’s prior declaration that the the collection was not bound by any prior contractual arrangements. This is all business as usual, entirely aboveboard. The fact that Sotheby’s will profit from this sale doesn’t make it wrong for them to conduct it. (If Sotheby’s hadn’t done it, Christie’s surely would have jumped at the chance.) I intended no imputation of  wrongdoing in my letter to Sotheby’s concerning this situation; I continue to hold Sotheby’s Denise Bethel and Christopher Mahoney (a former student of mine) in high regard, and consider them blameless under these circumstances.

Polaroid Land Photography Manual, Ansel Adams (1963)

• What is the actual size of the collection? Beats me. In the 2002 inventory of assets presented to the Delaware court, Polaroid estimates it as “in excess of 24,000 items.” (See Exhibit A.) More recently, in a now-vanished page formerly at the company’s website as recently as July 16, 2009, Polaroid estimated the combined European and U.S. collections at 22,000 works total. The motion just approved by the Minnesota court releases about 16,000 items to Sotheby’s for auction. That leaves between 6000-8000 items entirely unaccounted for. No one has offered any explanation of this discrepancy.

• Was the effort of the past month a lost cause? In retrospect, I have to say yes. Not knowing when I started out that the Delaware Bankruptcy Court had already terminated any claims the photographers could have had on their works in the collection, I thought there might be some chance, however slim, of throwing what John Lennon called “a Spaniard in the works” via an 11th-hour intervention. Clearly I was wrong, though I considered it at least worth a try. My apologies to any of the photographers who took the trouble to write letters per my recommendation and feel I wasted their time. Regardless of that, I thank them for taking the situation seriously enough to take this stand with me.

Polaroid Kitchen, Therese Brown (2008)

• What’s the status of the archival material related to the collection — correspondence with the artists represented, contracts and agreements, in-house documentation of activities relating to the 20×24 and 40×80 studios, maquettes and copies of books and exhibition brochures based on the collection, etc.? Where are these now located, and what plans are afoot for disposition thereof? I have no idea. I’ve heard rumors that all documentation of the European collection got trashed when Polaroid closed down its European operation and transferred the European collection temporarily to museums in Paris, France and Lausanne, Switzerland. But I can’t verify that, and have heard nothing about whatever relevant archives exist in the States.

• What’s the best-case-scenario outcome at this point? I suppose it’s still possible that some institution could step forward with an attractive offer for the entire collection. I won’t hold my breath on that, and don’t advise my readers to do so. Since Sotheby’s appraisal has indicated that the bulk of the collection’s market value resides in about ten percent of the included items (1700 of them), it seems likely that those will take pride of place in the auction, with the remainder sold in auction lots or sold in lots outside the auction proper. Conceivably one or more institutions could buy up representative lots, so that at the very least some representative cross-sections of the collections would find permanent institutional homes. And of course we can hope that the archival documentation of the collection has survived and will get placed in some appropriate repository.

• What lesson can we extract from this? When an institution that houses any important photo/art collection gets into financial trouble, the photo/art community needs to sound an alert and, collectively and aggressively, monitor the situation and seek solutions thereto. The earlier the better.

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Anonymous found Polaroid

We should mourn the loss of the Polaroid Collection, because its inaccessibility henceforth and its planned dispersal next spring will effectively and permanently demolish a resource whose value lay in great part in its literal integrity. This makes it quite different in kind from something like the Wagstaff Collection that formed part of the Getty Museum’s original core holdings. The Wagstaff Collection had no organizing principle save the sensibility of the man who accumulated it — the famed “eye of Sam Wagstaff.” (And I do hope the terms of that purchase eventually brought said orb, cryogenically preserved, to the Getty; surely scholars of the future will want to scrutinize and analyze its unique qualities.)

The Polaroid Collection, by contrast, had an inherently organic and synergistic aspect, an internal logic. It represented what a reasonable cross-section of 20th-century picture-makers achieved with a particular set of tools, materials, and processes developed by a corporation that made a special point of interacting with and learning from those artists. Maintained as a whole, it enabled a vast range of exhibition, publication, and study relating to photo history, art history, visual culture, material culture, popular culture, and many other disciplines. Once scattered to the winds of the market, all of that has gone for good.

So that’s what we’ve lost. I don’t feel foolish for undertaking this fool’s errand. As I wrote in response to a recent comment from Donna-Lee Phillips, from my standpoint, it would have been sadder still to let the collection slip away without at least some hint of protest and lament from the “photography community,” however we might define that these days. My thanks, again, to those who jumped into the fray with me. And my appreciation to all those who fed me inside information, sent me documentation of their contractual relationships with the collection, added their voices to the chorus of concern in this blog’s comments, or emailed me privately with encouragement. It was all welcome, and useful.

Indeed, I got only one negative message during this effort, which dismissed the effort then underway while offering one of the dumbest suggestions I can imagine: Find 5000 photographers who would donate $400 each to raise $2 million to buy the collection and donate it to an appropriate institution. Sure, pal: Create a business entity legally enabled to receive such contributions, set up a special non-profit escrow account with a bank, enable funds transfers, create a contact list of 5000 photographers, draft a mailing, receive contributions from 5000 people, submit a bid of $2 million for a collection estimated by Sotheby’s at $7 million-plus. And of course return all that money if your bid failed. This from a photographer in the collection (who didn’t offer to start the ball rolling with the first $400), who is married to a curator, and who should therefore know better. (“Ignorance is a condition; dumbness is a commitment.” — M. Richard Kirstel)

Polavision camera, 1978

In closing, while lamenting the forthcoming diaspora the Polaroid Collection’s images will undergo, I urge us all to remember and celebrate both the genius behind these camera systems and the commitment to the creative community that the Polaroid Corporation manifested under Dr. Edwin H. Land.

Land (known to his friends as “Din”)  made one terribly wrong bet, on Polavision, Polaroid’s instant movie film. Released in 1979 just weeks before the advent of consumer-end videotape and video cameras, and immediately trumped by those options, this venture sent the company into a downward spiral and broke Land’s spirit. He retired soon thereafter. (I don’t usually write about technologies, but I published a piece in Camera 35 magazine titled “A Blast from the Past” in December 1980, meditating on the failure of this venture.)

Dr. Edwin Land with SX-70, Life magazine cover, October 27, 1972

Nonetheless, Land, and the Polaroid Corporation, gave us many gifts along the way, including the collection, what it stood for, and what it achieved during the course of its existence. If there’s a lesson here, it’s that the photography community needs to keep its eye on any troubled collection and initiate action to support maintaining its integrity at the very onset of any threat. And that we should never take institutional support — especially an extraordinary level of support such as that provided by Polaroid during its heyday — for granted.

Let’s leave this, then, on an up note — one of those moments in which Land and his colleagues handed us a small miracle that changed the medium forever. Here’s the 1972 Charles and Ray Eames film introducing the SX-70. As I write this, we have efforts underway to resume production of the film for these cameras. Dreams die hard. Sometimes they don’t die; sometimes they live on, and even come true.

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