Polaroid Model 20 Swinger Manual, 1965. Ali McGraw as cover model.
It ain’t over till it’s over, as Yogi Berra famously remarked.
Presently a distinguished law firm is in dialogue with a distinguished photographer concerning the possibility of filing a Motion for Rehearing of the August 27, 2009 decision by the Minnesota Bankruptcy Court to allow the breakup and sale at auction of the unique, historic Polaroid Collection.
For obvious reasons, I can’t disclose the identities of either the law firm or the photographer, and won’t unless and until they decide to move forward with this appeal and make that decision public. If they do so, then the photographer in question would become the lead plaintiff (if that’s the right term) in the motion. He’s qualified to do so, as he has several dozen prints in the collection, which, legally, gives him standing in this case. Other photographers with works in the collection would then get invited to sign on as additional plaintiffs, starting with those who’ve communicated to me their interest in participating in such a suit. So if you haven’t sent me an email indicating your desire to join in such an action, please do that at your earliest convenience.
As I don’t have standing in this case — “no dog in the fight,” as Federal Magistrate Judge Sam Joyner puts it in his extremely helpful Guest Post here at Photocritic International — I can’t push this forward any further myself. But I can get the word out as things develop, gather names and information, provide a platform for those who have something to say on the subject, and of course voice my own opinion as matters proceed.
I find it remarkable that, at this late date, neither the photo press nor the art press has paid any significant attention to the impending dispersal of an unduplicable collection of some 16,000 images. The only notice of this so far that I’ve seen in any art/photo periodical has appeared in the small-circulation newsletter The Photograph Collector, which in several recent issues has reprinted George Slade’s report on the August hearing, along with some of my own reporting on the situation. (Let me take this opportunity to wish Stephen Perloff, intrepid editor of both The Photo Review and The Photograph Collector, a speedy and full recovery from his recent heart attack.)
Tom Petters mug shot, October 2008
Meanwhile, the man who caused all this, ex-appliance wholesaler and Ponzi-schemer Tom Petters from St. Cloud, MN, is now on trial in Minneapolis. That’s getting big-time coverage from multiple sources, including the New York Daily News. And, as Susan Carey reports in the October 28 Wall Street Journal, “Petters Isn’t Going Down Without a Fight.” Seems he was aided and abetted in the scam that has put the Polaroid Collection in jeopardy by one Larry Reynolds, a government informant now in the federal witness-security program. Which means the Feds oversaw the construction of the scheme for which Petters stands indicted. That’s become a key point in Petters’s defense.
All of it very juicy, and I look forward to the denouement, however it plays out. I’d find it more entertaining, and less depressing, if the blowback from this rip-off artist’s failed magnum opus didn’t imperil an invaluable photographic resource. That’s a very small part of the much larger story, but the one that comes closest to home, and thus the one about which I care the most.
So I continue to pursue that aspect of the tale. Along the way, I should add, I’ve received yet another version of the standard release form used by Polaroid in its acquisition of works for the collection. As do most other examples of this document that I’ve acquired, this one includes no language indicating transfer of ownership, sale, or other outright and complete relinquishment of all rights thereto by the photographer. Instead, it specifically indicates that “I _____ hereby grant Polaroid Corporation and its companies, the worldwide non-exclusive rights for exhibition, editorial, publicity, and non-commercial publication purposes—e.g. print, electronic, Internet, CD-ROM—of the following images in perpetuity. I represent that in each case the photograph is mine and is fully released.”
I find no way to interpret this as a bill of sale. According to this document, as with its predecessors, Polaroid acquired only “non-exclusive rights” for specified purposes. If those rights were non-exclusive, then someone else shared them, and likely had other rights to these works as well. Which makes them joint property, meaning they can’t be sold without the consent of the other party to those rights.
What’s notable about this iteration of the form is that it bears a March 2005 date, and came from the desk of Barbara Hitchcock, then director of the Polaroid Collections. That’s several years after the first Polaroid bankruptcy and reorganization of 2002, suggesting that even in its final years the collection adhered to the policy and practice of acquiring only limited usage rights to the works it now claims to own outright and wants to sell.
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For an index of links to all posts related to this story, click here.
Thank you again for staying on top of this issue and providing links to outside articles.
The dated Polaroid release form to which you link in this article is identical to one in my possession (I previously passed along a copy of it to you in an email message in September). It was included in a 2006 email to me from Barbara Hitchcock, along with a set of guidelines for submission of portfolios to the Polaroid Artist Support Program (also sent by me to you in September). I already had two photographs in the collection (gelatin silver prints from Type 55 negatives) that were acquired by Polaroid in 1989 and had written to Barbara about the recently published Polaroid Book and to inquire into the status of the Artist Support Program.
I also signed a Polaroid release (possibly identical to the March 2005 document in question) when one of my photographs was published by Taschen in The Polaroid Book (also in 2005). If I am not mistaken, that form also was a blanket release, with “All my photographs in the Polaroid Collections” typed onto one of the “Title, date” lines. At the time, I thought it odd that they wanted another release, since I had already signed one specific to the two photographs I sent to the collection sixteen years earlier.
The other document to which I refer above, the guidelines for the Artist Support Program, includes this statement:
“Polaroid’s grant program provides about $325.00 (at lowest dealer net pricing) of Polaroid products in exchange for each exhibition-quality image created with Polaroid films selected for The Polaroid Collections. These images must be released to Polaroid for exhibition, publicity, editorial, electronic — e.g., Polaroid web site — and non-commercial purposes. If photographs are accepted, release forms will be sent to you for signature.”
Again, if I am not mistaken, this language resembles (if it is not identical to) that of a similar document I was sent in 1989, when I submitted a group of photographs for review. The above-quoted statement squares with my understanding of the legalities at that time. (Except, of course, Polaroid was not paying $325 per image twenty years ago. Interestingly enough, they paid me with cash, not with film, though the guidelines said it would be the latter.)
I think the quoted guidelines statement must be seen as separate from the language of the release form. I know that I never understood the transaction as being anything other than a purchase of my prints by the Polaroid Corporation, with me properly retaining all rights to the image itself (and I would have reasonable access to the original print in the collection). Polaroid would have limited (though still extensive) publication and exhibition rights, via the release form, in addition to the prints.
Although the guidelines use the word “image” rather than “print” — creating, perhaps, some legal ambiguity . . . or not: “exhibition-quality image” does not suggest to me content, but a physical artwork — I never have thought that I continued to own my prints in the collection, any more than I own prints I’ve sold or given to other parties. The copyright, yes, but not the physical prints themselves. If other artists submitted under different guidelines or signed differently worded releases, then it’s possible that they have different rights (than I think I have) to the physical Polaroid prints. I certainly would hope so in any case involving one-of-a-kind Polaroids (thankfully mine are not in that category).
As I stated in my original email to you (one that preceded the message containing the release form and the guidelines), since I have prints in the collection, presumably I have standing in the case, and I would be most interested in joining any appropriate legal action to try to stop the sale and keep the collection intact.
Regards,
Lou Barranti
I appreciate your detailed account of your dealings with the Polaroid Collection.
The posted version of the release form for the Collection to which you refer is in fact the one you sent me earlier. I didn’t know if you wanted me to identify you as the source, so I put it up as an anonymously submitted document. I’ve now added to it the Artist Support Program guidelines from 2006 that you sent at the same time.
Because there were numerous release forms over the years, reflecting an assortment of assumptions as to the nature of the agreement between the photographers and the collection, it’s vital to have the Minnesota Bankruptcy Court revisit those contracts. Sam Yanes, formerly of Polaroid and instrumental in the formation of the collection, has issued he following statement: “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.”
The court has an obligation to examine and consider not only the language of the contracts but the assumptions of the contracting parties. It seems clear from Yanes’s statement, from other conversations I’ve had with former curators of the collection and photographers included in it, and from the documents themselves that the photographers contractually enjoyed certain rights in relation to their works in the collection that are untypical with standard bills of sale.
In your case, for example, even though you got paid in cash instead of materials, and took this as an outright sale, you concluded from the agreement that you “would have reasonable access to the original print in the collection.” That’s a logical extrapolation from the language of the contract, but hardly the usual arrangement between an artist and a collector/collection.
To make an analogy, if I sell you my car with no strings attached you can turn around and sell it to someone else without considering me. But if I sell you my car with the contractual proviso that I get to use it two weeks a year until it gets scrapped, my right to access travels with it when you sell it, and the buyer has to agree to that — otherwise you can’t legally make that sale.
The goal, as I’ve said repeatedly here at the blog, is not to persuade the court that photographers somehow still own their works outright and thus get the works in the collection returned to the photographers. The goal is actually several-fold:
• Force disclosure of all the contracts and letters of agreement covering these works, plus documentation of the transactions, and solicit testimony from the several curators and other Polaroid executives involved in building the collection.
• Separate the works that are contractually owned outright (there definitely are some) from those that are contractually encumbered. The current holders of this collection have the right to sell the former at auction, but not the latter.
• Those current holders will then be prevented from selling off the encumbered works. If they wish to spare themselves the trouble and expense of maintaining this portion of the collection, apparently an urgent matter for them, they’ll have to find a repository wiling to accept it with the contractual encumbrances. That would force them either to lower their asking price, making it much more attractive as an acquisition, or to donate it outright.
• From my communication with many of the photographers represented in the collection, most would be willing to disencumber those works if assured that the collection would stay together as a whole in an appropriate repository. What would satisfy them, I think, would be a hi-res scan or copy negative of their works, so that they could then exercise their share of the “non-exclusive rights” to those works: publication, non-commercial and commercial usages, etc. Since Polaroids are, by definition, almost always “one of a kind” works, licensing of usage rights requires access to the original object. If the court terminates the contractual rights of photographers in the collection to access their works, it ends their ability to exercise their rights in relation thereto, de facto and de jure.
All this, of course, is contingent on the timely filing of a Motion for Rehearing that succeeds in persuading the Minnesota Bankruptcy Court to revisit its decision.
Thank you for your comments. I should add that even though I took my transaction with Polaroid to be a sale of the objects themselves, I do not believe that I have, or should have, lost my contractual right of access to those pieces. Therefore, as in your automobile analogy, I would think that any entity purchasing the Polaroid Collection, in whole or in part, should be obligated to provide access as well.
I want to correct something in my initial comment, though it does not pertain to the bigger issue of the fate of the Polaroid Collection: I have just located the paperwork from 2004 associated with the publication of The Polaroid Book. The Polaroid (not Taschen – there was a separate release for them) release form that I thought redundant (since I already had signed one in 1989) was not, in fact, a blanket release like that in the 2005 document to which you have linked in this post, but was specific to the photograph included in that book.