Polaroid Collection: Update 14

Polaroid Camera, 1960s wood prototype

Here’s Sotheby’s February 11, 2010 press release announcing the pending auction of the Polaroid Collection. It concludes with the following: “Note to editors: The collection is being sold by Order of the United States Bankruptcy Court for the District of Minnesota.”

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A February 12, 2010 post by Marion Maneker at Art Market Monitor states that “A. D. Coleman has been leading the fight against the sale of the Polaroid collection.” Let me correct this misperception, or at least put a finer point on it.

As both the Minnesota Bankruptcy Court, in its August 27, 2009 proceeding, and Federal Magistrate Judge Sam Joyner have made clear, I don’t have standing in this case, since I don’t have work in the collection. In Joyner’s words, I “don’t have a dog in this fight.”

Therefore, by definition, I can’t “lead the fight.” If a “fight against the sale of the Polaroid collection” does take place, it will do so because, and only because, plaintiffs with standing — photographers with work in the collection — file either a Motion for Rehearing of the August 27 court decision or an appeal thereof. In relation to that fight, should it ensue, I will function as a cultural journalist commenting on it and possibly an expert witness (should either side solicit my services in that role).

What I do lead presently, have led since July ’09, and intend to lead until this situation plays itself out and culminates, is the effort to inform the photography/art audience — including those with work in the collection — of what’s happening in regard to this auction, and how we got to this sorry point. This is a journalistic project, not a legal one, and should be understood as such.

Surely the planned break-up of this distinctive repository (at a time when notable photo collections are so often respected in their integrity, conserved, and protected for posterity), merits such attention. Just as certainly, the steps by which legally binding contracts “in perpetuity,” made with hundreds of photographers and covering thousands of works, got voided by courts that never reviewed those documents deserves close scrutiny, and careful study as a cautionary tale. I feel no need or obligation to rationalize or justify my project beyond that.

Toward those ends, here at Photocritic International I’ve done the following since mid-July ’09:

• gathered as much documentation as I could find online or obtain from photographers, artists, people connected with the collection, and others, to make those references readily available to anyone concerned with this situation;
• synthesized the print and online coverage of this story by the mainstream press, the art press, and the photo press, highlighting passages that seem particularly pertinent to the issue of the Polaroid Corporation’s original written agreements with the photographers who contributed to the collection and the unilateral revision of those contracts via which two bankruptcy courts stripped photographers of their contractual rights;
• pointed to assorted salient facts, noted contradictory assertions and significant lacunae, and corrected or challenged false, misleading, or confusing assertions;
• solicited and published original reportage on the court proceedings by a qualified arts writer, and original analysis of the situation by a qualified legal expert;
• prodded the art/photo press to increase its attention to these matters, and to ask more probing questions about it;
• encouraged individuals with standing to communicate with each other and consider their legal options in these circumstances;
• encouraged commentary on all of this from interested parties, with this blog serving as a forum;
• and published my own commentary thereon, mostly in this space but also in several print periodicals.

I’ve done that on my own initiative, on my own dime, and on my own time. In all this I’ve striven to ensure the authenticity of the documentation I’ve posted, to quote others in ways that do not distort the contexts of those extracts, to provide links or bibliographical citations to those contexts so readers can judge the excerpts in their original environments, source all references, fact-check both those sources and my own statements, and correct errors of fact — my own, of course, and those of others as well — as they come to my attention and I’m able to verify any inaccuracy and amend it. This will continue as the policy for coverage of this story (and any other) here at Photocritic International.

I don’t think of this as “leading the fight against the sale of the Polaroid collection.” I think of it as basic investigative journalism, applied to the pending demolition of a cultural treasure. And I remain surprised that, at least until the last month, few of my colleagues have taken it seriously.

At the present moment, no party with standing in this situation has announced official opposition to the auction in the form of a Motion for Rehearing or an appeal. While that may change (and rumors to that effect have begun to circulate), this means that until now and at present there is no “fight” for me or anyone else to lead. And, as noted above, if such a battle does start I won’t lead it; photographers and artists with standing, and their chosen legal counsel, will do so, and it’s they who will win or lose, not I.

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My goading seems to have achieved some revisionism at Art Market Monitor, in re their coverage of the pending Polaroid Collection auction. They’ve now begun refining some of their own commentary, while actually evoking some new response from various parties. See:

• “Polaroid Mistakes,” by Marion Maneker (February 12th, 2010)
• “Unanswered Polaroid Questions,” by Marion Maneker (February 20th, 2010)
• “Hesitating Polaroid,” by Marion Maneker (February 24th, 2010)
• “Sotheby’s Clears the Polaroid Air,” by Marion Maneker (February 24th, 2010)

In the last of these, an unnamed spokesperson for the auction house makes the following assertion: “Both of Polaroid’s bankruptcy proceedings in 2002 and 2009 were well-known and well-publicized events, with notices provided of the hearings as required by the Federal Bankruptcy code. Any parties interested in inquiring about individual works in the collection had multiple opportunities to raise questions.” (Emphasis added.) This is disingenuous, and potentially misleading, though perhaps not deliberately so. To wit:

1. No photographer with work in the collection has ever received any notice of any kind — from the counsel and trustee of the original Polaroid Corporation during the first bankruptcy proceeding (2001-02), from the counsel and trustee of the current holder of the collection during the second bankruptcy proceeding (2008-09), from the Delaware Bankruptcy Court, or from the Minnesota Bankruptcy Court — concerning the proposed or court-endorsed disposition of the entire collection or their work therein. (The only exceptions would be the half-dozen who, in August 2009, wrote to the Minnesota Bankruptcy Court, thus getting on that court’s mailing list.) I’m quite sure that Sotheby’s did not intend with the quoted statement to deny the simple and verifiable fact that no party to the several sales of the collection and this auction, including Sotheby’s itself, has ever seen fit to inform the makers of this work as to their plans for it, or of the unilateral termination of their contracts with the Collection and its corporate owners.
2. I’m equally certain that Sotheby’s did not intend to deny that, while both the 2001-02 Polaroid Corporation bankruptcy proceedings in Delaware and the 2008-09 Petters Group Worldwide bankruptcy proceedings in Minnesota were indeed “well-known and well-publicized events,” the disposition of the collection as a whole was minimized and buried in the first proceeding and treated belatedly by the Trustee in the second. Short of wading through labyrinthine documentation couched in often impenetrable legalese, no one with work in the collection had ready access to information about the moment-to-moment legal status of the collection. These are also verifiable facts, as I’m sure Sotheby’s will acknowledge.
3. While it’s true that, assuming they knew of the situation, “Any parties interested in inquiring about individual works in the collection had multiple opportunities to raise questions,” it’s also verifiably true that they would have had a hard time getting straight answers. Until the current efforts to set the auction in motion began in spring 2009, neither the original Polaroid Corporation nor the successive holders of the Polaroid Collection had ever publicly announced to the art/photo community that, with court approval, they now considered all original agreements with these picture-makers null and void. Nor had they announced any effort either to place the collection with another repository as a donation or sell it off, whether in its entirety or piecemeal. Indeed, statements precisely to the contrary have come consistently from those in charge of the collection. For example, Mark Feeney’s Boston Globe review of the “American Perspectives” show drawn from the collection, “Instant Gratification,” published on November 22, 2002, includes the following: “As for its 23,000-photograph Polaroid Collection, ‘we are going to keep it intact, and it will remain part of Polaroid for the foreseeable future,’ says company vice-president Jim Landrigan.” [Note: This article is online at the Boston Globe site and elsewhere, but available only by subscription.] Specious assurances such as these from official sources certainly helped to lull the photo/art community into a mistaken sense of confidence that no action was needed from those with work in the collection to protect their ongoing rights to access to their works, or protect the collection as whole from disintegration. Furthermore, at least as recently as 2005, according to the documentation, work was being acquired for the collection using the same letters of agreement with the same terms as work acquired in the ’80s and ’90s — indicative of a continuum of policy and practice in the building and management of the collection. It ill behooves Sotheby’s, therefore, to insinuate that such questions from parties with standing (or from journalists) would readily have evoked forthright and factual answers prior to spring ’09.

So perhaps Art Market Monitor will now see fit belatedly to ask Sotheby’s to clarify its statement in these regards, subsequent to declaring prematurely that the current press release “clears the air.”

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For an index of links to all posts related to this story, click here.