Rays of Hope
Once again, I say to you: 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 or assert ongoing rights to access them, the time to act is now. Please read on, as there’s new cause for hope in this situation.
U.S. Bankruptcy Court Seal
In “Guest Post 5: Federal Judge Sam Joyner on Polaroid,” just posted today (September 15, 2009), U.S. Magistrate Judge Sam A. Joyner provides a cogent and extremely timely analysis of the court decisions from 2002 (Delaware) and 2009 (Minnesota). He concludes that both decisions constituted miscarriages of justice, and he recommends a particular course of action to rectify this wrong.
I won’t try to synopsize Judge Joyner’s argument here; his exposition is clear, and free enough of legal jargon that lay persons like myself and this blog’s readers can understand it. I urge you to read it after finishing this quick note from me. I want to thank Judge Joyner for taking the trouble to draft this analysis for Photocritic International, and for producing such a lucid and helpful summary of the situation and recommendation for its resolution.
Based on his considered conclusion that many if not all of the photographers and their estates represented in the Polaroid Collection have ongoing and inalienable rights to those works that two state courts have inappropriately voided, Judge Joyner suggest the following:
- The identification of parties with standing in this case is imperative. To have standing, and become a plaintiff, such a party must have work in the collection or officially represent the estate of a photographer with work in the collection. You can determine if you or someone you represent has standing by going to Exhibit B in this PDF file.
- If you have standing (or if you can prove that you have work in the Polaroid Collection but your name does not appear in Exhibit B), gather whatever documentation you have in relation to the sale, barter, donation, or long-term loan of your work to the collection. This includes correspondence, invoices, letters of agreement, contracts, purchase orders, receipts, etc. Click here for a PDF file with samples of such documentation.
- It will be necessary to file a Motion for Rehearing or Reconsideration of the Minnesota Bankruptcy Court’s August 28 order allowing Sotheby’s to move forward toward a spring 2010 auction of the entire collection. This should be done by a Minnesota lawyer, preferably a bankruptcy lawyer. We have some breathing room here, since such a motion can be filed “within ‘a reasonable time,’ extended in some situations up to one year,” according to Judge Joyner.
- It may prove possible to find a Minnesota lawyer willing to tackle this task pro bono. I have feelers out on this, but obviously welcome any suggestions from my readers. Volunteer attorneys would receive the thanks of a grateful photo community, of course. I will try to get an estimate of legal fees for this filing. If a pro bono attorney can’t be found, the photographers with standing will have to decide how to handle the legal expense of such a motion.
- Such a motion could force the Minnesota bankruptcy Court to review and rescind its order approving the dispersal of the collection at auction. Possible outcomes: return to the photographers or their estates of of any works not owned outright by the collection according to the contracts; transfer of the encumbered part of the collection, in toto, to a repository that would accept it while committing itself to respect the contractual rights still held by the photographers.
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I don’t have standing in this case, but will assist in any way I can. This means I can’t become a plaintiff, because, as the Minnesota Court affirmed, I “dont have a dog in this fight,” to use Judge Joyner’s words — I don’t have work in the collection. However, I offer this blog as action central for this struggle (which it’s become, without my planning that): a platform for consciousness-raising and a collecting point for relevant information. I also offer my services as an expert witness in any proceedings that result.
"Rabble-rouser" A. D. Coleman
- Let me know if you have standing in this case (per 1 and 2, above), have documentation of that fact, and would consider becoming a plaintiff in a Motion for Rehearing. You can simply send me an email with that statement and your contact information: adc [AT] photocritic [DOT] com. I’ll maintain a list and make it available to an appropriate attorney when we locate one.
- Please spread the word. You can forward this post, tell your friends about it via email, and otherwise help notify the art and photography community that all’s not lost.
That’s it for now. Once again, I advise you to read Judge Joyner’s commentary on the case, which I think you’ll find heartening; I certainly do. It truly ain’t over till it’s over. So stay tuned. (For which read: Subscribe.)
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For an index of links to all posts related to this story, click here.
My name is listed in section B. It says they have approx 2 images, but I am sure I sent them a portfolio of about 10 images, all of which they kept. Yes, I would be willing to be a plaintiff, but not sure what that entails.
Thanks for signing on, Diane. I’ll put you on the list. With luck, we’ll locate an attorney who will handle this for no fee, and he or she will tell the plaintiffs what’s needed as documentation, etc.
Re your portfolio . . . If you review some of my earlier posts on the Collection, you’ll see that somewhere between 6000 and 8000 pieces have mysteriously gone missing. No one has offered any explanation of this. Also, there’s still material from the collection in Switzerland, at the Musée de l’Elysée in Lausanne, and it’s not clear to me that this batch got included in the inventory created by Sotheby’s. They could have your missing pieces. In any event, what will matter for the rehearing motion will be your documentation of the Polaroid Collection’s acquisition of this portfolio.
Despite my previous reluctance to state a claim because I worked for Polaroid, I would now like to be a plaintiff as well. I will try and reach out to others I know in the collection.
Thank you again for your continuing efforts.
Thanks for signing on, John.
The point is to get enough photographers with enough work (collectively) in the collection willing to join in a Motion for Rehearing that the Minnesota Bankruptcy Court will have to agree to such a hearing. That will force disclosure and review of all the diverse contracts and letters of agreement between the collection and the photographers.
As Federal Magistrate Sam Joyner indicated in his Guest Post at this blog, many if not most of those contracts disallow sale of the individual pieces in the collection. So, even if it turns out that Polaroid does indeed own all of your work outright, because you produced it as their employee, your presence as a plaintiff in the case will have helped the cause. And if it turns out that your contract with Polaroid gave you ongoing rights to access to your own work that the court’s decision has voided, you may at least have those rights restored.
So — onward.
Hi,
Just got back from traveling and I have to go through my files to find the documentation. They say they have 25 images. I think there are more although some of them might have been work for hire. I will check this weekend and get back to you. Thanks again for your dedication to this.
Sharon
I will sort through my documentation. For 17 years I was an independent contractor and I don’t believe there was a formal contract for those exchanges. In any event I want to help organize other artists in the program who have a claim.
I’m in, though I am still hoping that the collection will end up unbroken in one museum — even if it must happen via Sotheby’s.
Although I’m listed as having only three images in the collection I’d like to sign on. It’s about the principle here. I have no documentation since the 70’s and early 80’s were days of smiles, handshakes and flattering invitations … at least for this naive photographer. Thank you A.D. for making this the issue it needs to be.
I’m listed in Schedule B with 4 images, but I think there should be some more.
What can I do? I am in Germany.
I’ve heard rumors that some important developments are imminent. Check in at this blog regularly for further information.
P.S. I have confirmation by Lausanne Museum, that there are 3 photos! The Paris Museum told me, that they returned the collection in 2004.
What an interesting article about Polaroid. Should have collected a few of them, might have made a dollar.