Polaroid Collection: Update 16

In a feature story titled “Rights Battle Over Polaroid Sale,” Charlotte Burns reports in the March 2010 issue of the International Edition of The Art Newspaper that “A group led by a former US magistrate judge has launched an 11th hour campaign to prevent the auction of photographs from the Polaroid collection.”

Published on page 55 of the print edition of the March issue, at the top of its “Art Market” section, this report’s lead paragraph continues, “Judge Sam Joyner and others are working towards filing a motion for rehearing at the Minnesota bankruptcy court that awarded sale rights to Sotheby’s last August.” Burns’s account is subtitled “Former judge urges artists to go to court over original contracts before June auction.” The online version of this story carries a March 9, 2010 dateline.

Lucas Samaras, "Photo-Transformation"

The story goes into considerable detail concerning the intervention effort that Judge Joyner, a retired Federal magistrate, has elected to spearhead — a legal move involving a cluster of photographers represented in the collection (who have standing in this case by dint of that fact) and their counsel. According to Burns, “Joyner believes that both the Delaware Bankruptcy Court that awarded transfer of the Polaroid Collection in 2002 and the Minnesota Bankruptcy Court that approved the Sotheby’s sale in 2009, ‘acted without full knowledge of the restrictive language in the many and varied licence agreements.'” An unnamed spokesperson for Sotheby’s is quoted as insisting that the two bankruptcy proceedings fully cleared the collection for unencumbered sale.

The article does not provide the names of the anticipated plaintiff photographers, how many works they have in the collection, or how many of those are slated for auction in June. Nor does it name their designated attorney(s), or indicate the anticipated date of filing for the proposed motion. Presumably those facts will become public if and when the Motion for Rehearing gets made in Minneapolis.

Harry Callahan, "Chicago (Trees in Snow)"

Burns briefly quotes me from one of my early posts here at Photocritic International, then describes this blog as a “nexus for information, and forum for discussion” pertaining to the crisis of the collection. She states that “it was through this site that Joyner first became aware of the situation.” (Note: Joyner’s initial analysis of and commentary on the legal issues surrounding the sale appeared in an exclusive Guest Post published here on September 15, 2009.)

Burns also devotes some space to another aspect of the story, writing that “Coleman has posted key court papers which appear to reveal a major discrepancy in the collection inventory — approximately 8,000 works from the collection seem to be missing.”

"Tetons and Snake River," by Ansel Adams

In addition to the Burns reportage, this issue of The Art Newspaper contains “The Polaroid Collection is more than a set of prints,” an op-ed piece by the noted British curator and historian Mark Haworth-Booth. (Subtitled “Why the collection should not be cherry picked,” this appears on page 26 of the print edition, in the “Editorial & Commentary” section.)

Haworth-Booth collaborated with the Polaroid Collection on a 1976 Ansel Adams exhibition at the Victoria & Albert Museum in London. At the time, Haworth-Booth was curator of the Photography Dept. of that institution (which houses an extraordinary photo collection). In that same role, he also worked with the Polaroid Collection on subsequent exhibits of imagery by younger, lesser-known photographers in 1988 and again in 1989.

“The Polaroid Collection . . . has the intricate historical importance of an archive, documenting one of the great periods of photography’s efflorescence,” Haworth-Booth writes. “It is not merely a group of more or less desirable trophies. . . . The true value of the Polaroid Collection is cultural. Paraphrasing the immortal Oscar [Wilde]: it was a misfortune for the Polaroid Collection to fall into the hands of a crook. To sell it off would look like carelessness.”

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Presumably this will play itself out in the Minnesota court. As Judge Joyner himself wrote in September 2009, “Coleman does not have a literal dog in this fight because he did not contribute any of the photographs.” This means that I don’t have standing, and thus could not become a plaintiff in this case, even if I wanted to do so. All I can do here is report on the situation.

David Levinthal, "Untitled (Wild West Series)"

However this does resolve, another urgent matter presents itself. As I wrote on March 3, 2010 in a comment responding to a comment from John Reuter:

“We should all keep in mind that, even assuming the auction by Sotheby’s goes through as planned, it includes only 1260 works out of an inventoried total of 15,936. That leaves 14,676 still in the hands of the court-appointed trustee, John R. Stoebner, for disposition. His job is to raise as much cash as he can, as quickly as he can, to settle the debts that the now-incarcerated Tom Petters left in his wake. It’s a safe bet that Stoebner would much prefer to sell that entire collection, quickly, to a single buyer, and is prepared to negotiate.

“So we need to turn some of our attention to alerting suitable repositories to the desirability and ongoing availability of the bulk of the collection, which remains a unique anthology of twentieth-century visual culture. And we need to make it clear that the photographers represented in the collection will assist as much as possible in the transfer of the collection to a permanent safe haven.

“In short, we need to help the trustee find this collection — complete as is, or minus the auction selection but otherwise intact — a good new home.”

Dr. Edwin H. Land, inventor/founder of Polaroid

While we recognize as ideal, from the standpoint of cultural history, the maintenance of the complete collection in its full and integral form, we have to accept the likelihood that we won’t see this outcome. But we should also acknowledge that the collection won’t get stripped of its significance if less than ten percent of its present holdings (1260 works out of 16,000) gets dispersed — especially since a substantial number of the works up for auction are not Polaroids but classic gelatin-silver prints purchased in the marketplace by Dr. Land. “The true value of the Polaroid Collection is cultural,” as Haworth-Booth writes. What he calls “the intricate historical importance of an archive, documenting one of the great periods of photography’s efflorescence” remains embedded in that synergistic compilation of 14,676 works. And, as Haworth-Booth points out, “the collection is more than its 16,000 prints — it includes correspondence with many of the artists in the collection.” Presumably that correspondence, plus related documentation, would accompany the bulk of the collection to its new home(s).

Let me also add that judicious buying at the auction could acquire representative pieces by many of the photographers and artists selected for that sale, not all of which will go on the block as high-ticket items. According to Carol Vogel’s New York Times report on the auction, “When selecting the most valuable (and salable) photographs from the collection, Ms. Bethel [Denise Bethel, head of Sotheby’s Department of Photographs] said she sought a wide price range in the hope of attracting new or young collectors.” Thus one could retain something of the spirit and scope of the full collection, by purchasing at auction select works that would supplement and enhance the non-auctioned component of the collection.

As I wrote in my February 11, 2010 post, “I have no desire to see this work do poorly . . . on the block. That would damage the subsequent market for the specific photographers whose works Sotheby’s has chosen, and could damage the market for photography.” Sotheby’s has selected what the New York Times described as “the cream of Polaroid’s collection” for this auction. The auction market has its ups and downs in a volatile economic passage. But its ups — for prime items such as the Giacometti bronze with which Sotheby’s recently set a record — can prove spectacular. If Sotheby’s has picked well from the collection and timed this auction right, and if the market is (as some believe) recovering, the pending sale could do well by the works involved and the photographers and artists who made them, and no one would wish otherwise. That could also solidify the desirability of the remaining portion of the collection.

David Hockney, “Imogen & Hermione”

If we’re to make lemonade in this difficult situation, then, we’ll need to assist the trustee in finding answers to some complex questions:

• Can we identify an institution that has the capacity to absorb what we might best define as a major study collection of 14,676 Polaroid works (a hefty number for any repository to take on)?
• Should we instead look to find multiple homes for the collection — say, hypothetically, four institutions, each receiving 25 percent of the collection, or 4169 works, preferably willing to cooperate with each other in relation to this collection?
• If the latter, how do we create an equitable distribution of the works, fair to all the recipient institutions?
• Does the collection’s archive include a substantial amount of such documentation as Haworth-Booth refers to? If so, how sizeable is that component, and (if the multiple-homes route seems most viable) how should the trustee address that issue of distribution?
• Leaving aside the to-be-negotiated price of the non-auctioned portion of the collection, and any additional monies that might get spent at the auction to supplement that larger segment of the collection with selected examples of works that go under the hammer, the institution(s) acquiring the bulk of the collection will face significant costs simply to cover intake, conservation, cataloging, and other such standard procedures. While of course we could hope that interested institutions would have their own sources of funding, in these difficult economic times they might well need financial support for that. Can we identify one or more donors willing to step in and make acquisition and preservation of the remainder of the collection a viable option?
• Is it feasible to build into the process the provision to the photographers of reproduction-quality high-resolution scans and/or transparencies — which most qualified institutions would likely make in any event, as part of the accessioning/cataloging process? (This would enable the photographers to exercise their copyright and subsidiary-rights licensing options in relation to their works. That would minimize the photographers’ otherwise legally and financially significant loss of access to their works in the collection.)

I have no immediate answers to these questions or solutions to these problems. But I encourage my readers to participate in the exploration of possibilities. The trustee, John R. Stoebner, will assuredly remain open to all reasonable offers and suggestions for as long as his duties to the creditors will permit. However, understandably, he lacks wide familiarity with the numerous institutions, sponsors, funders, and patrons in the field that might come to the rescue here.

We need to make an effort to slice through the Gordian knot that this irreplaceable collection’s tangled backstory has become. Perhaps the photo/art community can draw on its collective experience, wisdom, and knowledge for that next step.

As always, this blog remains a forum open to the opinions of all parties, from all sides — including, should they wish to comment here, Mr. Stoebner, representatives of Sotheby’s, the creditors, and anyone else with something of value to add to the dialogue.

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Chuck Close, "9-Part Self Portrait"

In an unsigned March 11, 2010 story titled “Instant headache for Polaroid shooters,” the British Journal of Photography goes into considerable detail regarding the legal and financial impact of the bankruptcy court decisions, and the pending auction and dispersal of the Polaroid Collection, on the photographers represented in the collection. Its lead paragraph states that “There are times when copyright is rendered meaningless, especially when a law court fails to grasp the uniqueness of an artwork, and the fate of the Polaroid Collection is a pertinent example of this.”

This story is based largely on an interview with me conducted by phone last month. An excerpt: “When Polaroid built its extensive collection, the contracts it drafted gave the artists access to the works in perpetuity. ‘They could access and borrow their images whenever they wanted for their own use – exhibitions, books, and so on,’ says Coleman. But, this contract will be nullified once the collection gets dispersed and changes hands. ‘It’s no longer possible for the photographers to access the work,’ he says. The fact that it’s virtually impossible to replicate an image shot on instant film makes access to the work essential for photographers to assert their rights. “Since they don’t have access, they can’t license the works. All they have is the copyright, which is meaningless now. I don’t think the court understood the unique nature of the collection.”

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