Polaroid Collection: Update 7

What Did Polaroid Know, and When Did Polaroid Know It?

I don’t know if something’s rotten in the state of Denmark, but something’s definitely off in the state of Minnesota. Evidence accumulates that Polaroid has known all along that it never owned most of the work in its collection outright, yet the contents of that collection now move toward the auction block with the approval of the Minnesota Bankruptcy Court.

First we have the account of David A. Ross, former director of the San Francisco Museum of Modern Art (1998-2001) and, before that, the Whitney Museum of American Art (1991-98). In an August 27, 2009 comment at the Wall Street Journal website — responding to a comment there from me concerning the dubious legality of the court-approved sale of the collection — Ross had this to say about the status of works in the collection:

“Coleman is 100% correct. The works are on long-term loan to Polaroid, and were specifically acquired to be lent to museums, or used for similar non-profit educational purposes. I know this as there was a move afoot during the 90’s to donate the ‘collection’ to the Whitney Museum of American Art while I was its director, and I recall that the restrictions of selling the work led the already cash-starved company to consider the gift as it was consistent with the agreements that Polaroid had entered into with the participating artists. [Emphasis added.]

“I hope the sale will be stopped until this matter is cleared up,” Ross continues, “as the collection is a remarkable group of photographs — some terrific, so not so great — yet as a whole they represent the collective efforts of a corporation that for many years, understood the value of active collaboration with artists. This was one of Dr. Land’s greatest ideas, and one that should be memorialized by keeping this collection intact, and available for study and loan.”

Then we have Sam Yanes, Vice President of Corporate Communications at Polaroid Corporation from 1982-97, and instrumental in the formation of the collection. In the September 22, 2009 issue of the Boston Globe, in a story titled “Through the lens of time” by Globe staffer Alex Beam, Beam quotes Yanes 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.” [Emphasis added.]

So we have testimony from Ross, an influential museum director who, while at the Whitney, was offered the Polaroid Collection as a donation because “the restrictions of selling the work” eliminated the option of selling/purchasing it. And we have public acknowledgement from Yanes that Polaroid executives involved with the collection — including not only Yanes but also Manfred Heiting and Ted Voss, possibly others as well — knew long ago that the corporation did not own the collected works outright.

Aside from its physical possession of the collection (legendarily 9/10ths of the law), can the current Polaroid Corporation prove that it owns any of these works? According to the Minneapolis Star-Tribune, “The Polaroid Collection includes archival documents and images, artist notes, books and other memorabilia, court records show.” (See “Sotheby’s to appraise Polaroid art collection,” March 19, 2009.) There’s no indication whether the contracts and releases and letters of agreement covering the collection’s acquisition of its contents number among said documents. But it seems reasonable to assume that some of those documents, or others in Polaroid’s possession, concern the contractual relationships between the Polaroid Corporation and the photographers whose work it holds.

Let me qualify that by adding that, as recently communicated to me by Manfred Heiting, who directed the International Polaroid Collection from 1972-82, all documentation of the International Collection has ceased to exist. After Polaroid closed down the International Collection and Heiting was no longer in charge, he tells me, the corporation authorized the disposal of all files relating to the approximately 5000 works contained therein. This means that the only documentation of the Polaroid Corporation’s arrangements with the makers of those works acquired for the International Collection is whatever now remains in the makers’ hands.

So I’ll venture a guess that the “archival documents” referred to in the Minneapolis Star-Tribune story relate primarily or exclusively to the U.S collection. Apparently no one — now including the judges in federal bankruptcy courts in both Delaware and Minnesota — has ever asked Polaroid to produce verification of its claims to ownership and right of sale. Does no one else find that surprising? Is it unreasonable to ask Polaroid to provide those documents as evidence supporting its claim to ownership of the collection?

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I’ve already commented on the remarkable silence of the photo and art press on this situation. Let me add to that a lamentation about the fundamental failure of the photo/art press in general to follow up on leads such as those cited above, especially since they provide an obvious answer to the question a few journalists ask but do not aggressively pursue further: Why have no buyers for the collection come forward to strike a deal for this highly desirable and valuable aggregation of unique images?

Take, for example, Marion Maneker’s “Polaroid Wants to Go to Auction,” a piece subtitled “No One Offered Privately on the Polaroid Collection. Why?” and published by Art Market Monitor on August 13th, 2009, just two weeks before the Minneapolis hearing on the fate of the collection. In the body of the article, Maneker phrases his question thus: “Does the photography market lack deep pockets willing to buy a big collection?” He thereby narrows his inquiry strictly to the issue of asking price — which figure, by the way, the current owners of the collection have never stated in public. Maneker next takes at face value a statement from the Polaroid Corporation quoted from the Wall Street Journal: “Polaroid said that its own attempts to find buyers for the art had attracted interest from individuals, investors and institutions, but that it had yet to receive any formal bids.” And he concludes from this, “In other words, no one had the money or wanted to take the risk in buying so many photographs.” That represents neither sound reasoning nor investigative journalism.

The WSJ story Maneker’s quoting, “Instant Art on the Auction Block,” a short piece by Rachel Feintzeig dated August 11, 2009, similarly does not question Polaroid’s assertion that “it had yet to receive any formal bids” or look further than that. (Note: This is same piece on which David Ross and I commented, as mentioned above.) Of course, it’s perfectly possible that Polaroid has not “received any formal bids,” and that to this extent Polaroid and its counsel have told only the truth. But, based on the public statements of David Ross and Sam Yanes, it seems highly possible that this constitutes, at best, a partial truth.

The whole truth, it begins to appear, is that the current Polaroid Corporation may not have “received any formal bids” because it doesn’t own what it’s trying to sell in this instance, and that this fact quickly becomes apparent to prospective purchasers when they examine whatever documentation of the collection Polaroid presents to them. Which would certainly explain why PLR IP Holdings, LLC, the proud new owners of the Polaroid brand, intellectual property, and other tangible assets, acquired by them for $85.9 million in a St. Paul fire-sale auction in April of this year, took everything except the photo collection from Petters International. Why would they leave behind a multi-million-dollar art collection associated with their brand that they could have had for pennies on the dollar of its estimated value? Doesn’t it behoove the photo/art press to call them up and ask?

(To be continued.)

Tom Petters mug shot, October 2008

P.S. For coverage of the ongoing trial of Ponzi schemer Tom Petters, whose massive fraud has jeopardized the future of the Polaroid Collection, see the November 19, 2009 report by David Phelps of the Minneapolis Star-Tribune. Petters is charged with conspiracy, fraud, and money laundering, and faces a possible life sentence if convicted. Petters International, his holding company, acquired all the assets of the original Polaroid Corporation in 2004, then went belly-up in 2008. It sold off all of its Polaroid holdings at bargain-basement prices in April 2009 — everything except the Polaroid Collection, which the new purchasers excluded from the deal. If you want daily blow-by-blow accounts of the trial, go to Ken Avidor’s excellent blog, Petters Info. He actually sits in the courtroom every day and watches the prosecuting attorney deconstruct Petters, makes sketches of the proceedings, then assembles them into a video with voiceover that very evening. Something like a William Kentridge film. Great stuff.

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