Coverage of the situation relating to the pending sale of the Polaroid Collection continues. Here’s a story from the September 22, 2009 issue of the Boston Globe, “Through the lens of time,” by Globe staffer Alex Beam. Beam quotes Sam Yanes, formerly of Polaroid and instrumental in the formation of the collection, as follows: “I was responsible for accumulating some of this collection. I thought we didn’t buy these photographs, we just bought the right to use them. I talked to Manfred Heiting and Ted Voss, who also worked on the collection, and they agreed with me, that was the case.” [Italics added.] This is the first public acknowledgement that Polaroid executives involved with the collection knew long ago that the corporation did not own the collected works outright. (Yanes was Vice President of Corporate Communications at Polaroid Corporation from 1982-97.)
In support of Yanes’s contention, Beam cites (from documents first posted here) the language of the “release form” Polaroid used in acquiring many works for the collection — language that certainly does not give Polaroid clear and unencumbered title to those works. He also quotes photographers Erica Adams, Joel Meyerowitz, and John Divola, all of whom have work in the collection. (Beam quotes me as well, and cites the various posts at this blog as source material — so at least this campaign has begun to get the word out into the larger media environment.)
Ansel Adams, Singular Images (1989)
Beam closes his piece with a statement from William Turnage, manager of the Ansel Adams Trust. “I am disappointed that it has come to this,’’ says Turnage; “I suspect that Dr. Land is rolling over in his grave.” (Might as well glue those cards right on to the vest.) Several people have asked me why the Adams Trust hasn’t entered the fray, given that the lion’s share of the proposed prime auction material from the collection, more than 600 pieces, are Adams prints. I assume (but haven’t corroborated this) that virtually all the Adams works in the Polaroid Collection resulted from his long-term commission as a paid tester for Polaroid products, which would have defined the samples he submitted with his reports as work made for hire (WMFH), thus the actual property of the corporation that commissioned his research. If I’m wrong about that, or if Polaroid’s contracts with Adams gave him ongoing rights in perpetuity to use the images, then the Adams Trust has a bigger dog in this fight than most. Perhaps Mr. Turnage will enlighten us on this subject.
And here’s a much shorter piece from ArtInfo. Notably, both stories mention the problematic nature of the contracts and letters of agreement between the photographers represented and the Polaroid Collection — an issue first brought to light by Photocritic International. So the terms of of those agreements, whose obligations to the photographers the Minnesota Bankruptcy Court has summarily voided, have begun to surface elsewhere.
Meanwhile, Marion Maneker recaps the situation in his September 8 piece for Art Market Monitor, melodramatically titled “Polaroid Rage” (a bad pun on “road rage”?). This consists mostly of quotes from other reports, and doesn’t add any new information of its own. Nonetheless, every little bit of coverage helps.
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On the legal front: So far, I haven’t located an attorney willing to handle the Motion for Rehearing that Federal Magistrate Judge Sam Joyner proposed as the logical next step. The Minnesota Bankruptcy Court is in Minneapolis/St Paul, which is where the Motion for Rehearing would have to get filed. Doesn’t have to be a Twin Cities lawyer, though that would help just in terms of logistics. But it does need to be an attorney qualified to file in Minnesota.
The key action right now is filing the Motion for Rehearing, with a number of photographers signed on as plaintiffs. I already have a list of roughly 30 photographers willing to become party to such a motion. Once that’s filed, I’m sure others will agree to join the motion. With that motion filed, we’d then demand disclosure of all of Polaroid’s contracts, letters of agreement, and other documentation of acquisition of the work in the collection. It would take them months to put that together. This will effectively stall any forward motion on the auction from Sotheby’s, which would likely not invest further in that project if the marketability of the collection gets challenged.
Polaroid i-zone Translucent Pocket Instant Camera, Phat Blue
Once the court actually looks at the documentation of the collection, Joyner believes it will have no choice but to declare much of the collection unsuitable for sale. (See his Guest Post of September 15th, 2009 for his detailed analysis.) The choices would then be (a) return those works to the individual photographers and/or estates, or (b) find a repository that would accept the entire collection while abiding by the terms of the contracts.
If the court re-approves the sale after looking at the documents, that decision can be appealed, and would then get heard by a different judge at a different level. So, even if it costs a few thousand dollars to pay for the filing of the Motion for Rehearing, it would put the brakes on this for months, possibly years. That would create enough breathing room for a more coordinated campaign for relocating the collection to get underway.
I’ll continue to search for a qualified attorney willing to take this on pro bono, but welcome my readers’ efforts in identifying such as individual or firm, and of course would delight in a volunteer walking through the door.
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The Minnesota Bankruptcy Court’s approval of the motion to send this collection to the auction block has practical consequences for the photographers represented. The court’s decision imposes several immediate hardships on them:
- It has made it impossible for the photographers to register copyright of their works in the collection. 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. The works in the Polaroid Collection are by definition one-of-a-kind pieces, and most of the photographers represented didn’t make either reproduction-quality transparencies or scans of the positives before letting Polaroid have them. They’d have felt no urgent need to do so, since the agreements gave them access in case they wanted to do that later (for a book reproduction, or a dog-food ad, or whatever). So 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. And registration of copyright, as the court surely knows, strengthens the copyright holder’s hand in any legal situation involving a rights dispute.
- The court has also deprived them of the ability to license subsidiary rights to their works. While the contracts between Polaroid and the photographers generally forbade Polaroid from making any commercial usage of the imagery or licensing subsidiary rights thereto, the photographers retained those rights: to license their works for publication, advertising, reproduction on posters, etc. Since in most cases the photographers did not make copy negatives or digital scans of their works before depositing them in the collection, they can only exercise their subsidiary rights if they can exercise their previous contractual rights to borrow their works for such purposes. This was, in fact, part of the reason for the unusual agreements between the collection and the photographers — those contracts enabled the photographers to obtain their works on short-term loan from the collection for publication or other purposes, which would involve the making of copy prints, negatives, or scans (that, not incidentally. could also get used to register copyright). The court’s specific language — “… the Polaroid collection at issue in this hearing is a collection of physical objects, not licensing rights …” — conveniently ignores the obvious fact that the decision effectively terminates the photographers’ ability to exercise and profit from their licensing rights, even if it doesn’t transfer those rights to other parties.
Polaroid One600 Classic Instant Camera
The court’s decision basically puts these works permanently outside the photographers’ reach. You can bid and buy anonymously at Sotheby’s, and that auction house has no obligation to reveal the identity and contact info of any buyer. So if I buy one of these pieces myself, anonymously, through direct bidding or through a dealer, how does Photographer A contact me to exercise his/her right to reproduce that work for a forthcoming monograph, or obtain a transparency in order to license rights for a lucrative commercial usage?
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A footnote: Earlier this week, subscriber Mary Ann Lynch told me of a show of 36 works, “Tribute to Polaroid: Photographs from The Polaroid Collections,” that took place at SOHO Photo Gallery in New York in November 2008. This exhibition included works by Paolo Gioli, Diana Bush, Pierre-Louis Martin, Zeva Oelbaum, Franc Palaia, Stephen Petegorsky, John Reuter, John Wood and Natale Zoppis, among others. Curated by Barbara Hitchcock, it may well have been the last show ever drawn from the collection.
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For an index of links to all posts related to this story, click here.
Is the intent to retrieve the work and keep it together as a collection? I know this would be a massive undertaking, but it would be great if it could be housed somewhere.
The immediate goal is to bring the proposed piecemeal sell-off of the collection to a halt, by demonstrating that many if not all of the photographers with work in the collection have contractual rights in relation to this work, in perpetuity, that prohibit such a yard sale by Sotheby’s.
The current holders of the collection clearly don’t want it, and don’t want the trouble and expense of maintaining it. If they can’t most of it, they then have two choices: (a) lower or eliminate entirely their asking price for the legally encumbered components, to attract a repository ready to house it as a collection; or (b) return the encumbered works to the photographers or their estates. Given that the debtors now in possession of it claim — without providing documentation — that it’s costing them $450K per year to store it, I assume they’d act expeditiously to seek another institutional home for it.
Most people (including the majority of photographers with whom I’m in contact) would vastly prefer (a) over (b), but (b) is certainly preferable to (c): the projected dumping of 16,000 works onto the fragile and depressed photography market in the depths of the worst economic meltdown since the Great Depression.