Guest Post 6(c): Stephen Perloff on the Polaroid Auction

The Polaroid Auction: A Not So Instant History (Part 3 of 5)

by Stephen Perloff

[Editor’s Note: The previous two sections section of Perloff’s report comprise his detailed account of the June 21-22 auction of selections from the Polaroid Collection at Sotheby’s in New York. In this and the subsequent sections, he explores the backstory and ramifications of the auction. Perloff has published substantial coverage of the pre-auction controversy in The Photograph Collector, which he edits. — A.D.C.]

Legal and Moral Issues

The sale, as is now well known (and reported on in our previous issues of The Photograph Collector), was not without its controversy. There were many who desired to keep this unique resource intact. And there was the fact that Polaroid and the bankruptcy courts ignored the agreements with many of the artists in the Artist Support Program that clearly did not transfer ownership of the work to Polaroid.

Federal Judge Magistrate (retired) Sam A. Joyner

Ultimately, led by lawyer Sam Joyner, a group of artists in the Collection, of whom the most outspoken was Chuck Close, reached agreement with Sotheby’s and the trustee to withdraw nine lots from the sale. Sotheby’s errata sheet distributed at the sale read: “John Stoebner, Trustee of PBE Corporation[,] which is the consignor of the Polaroid Collection, has confirmed that nine lots have been withdrawn from the upcoming sale of 482 lots of photographs from the Polaroid Collection at Sotheby’s to be held on June 21 and 22. The withdrawn works will be reunited with the balance of the Polaroid Collection currently housed in Somerville, MA[,] and will further enhance its appeal. The Trustee will be working with Sotheby’s and a representative of certain of the artists in the Polaroid Collection to try and find an institutional home for the remaining approximately 10,000 works in the Polaroid Collection.” While I wouldn’t trust the grammarians at Sotheby’s, who left out a couple of commas in that statement, I’m hoping the locution “try AND find” rather than “try TO find” means that they are guaranteeing they will find a home for the rest of the Collection.

The following lots were withdrawn: Lot 26, Chuck Close: ‘5 C’ (Self Portrait)’ ($50,000–$70,000); Lot 145, Mary Ellen Mark: Selected New York Portraits ($8,000–$12,000); Lot 154, Andy Warhol: Martha Graham ($2,000–$3,000); Lot 170, Laurie Simmons: Selected Photographs from The Education Project ($4,000–$6,000); Lot 218, Joel Meyerowitz: Selected Images ($1,500–$2,500); Lot 223, Aaron Siskind: Selected Mexican Portraits ($1,500–$2,500); Lot 234, William Wegman: Selected Figure Studies ($5,000–$7,000); Lot 445, Various Photographers: Selected Self-Portraits ($2,000–$3,000); and Lot 462, Danny Lyon: Selected images ($5,000–$7,000).

It’s not much of a list in monetary terms. The Close was the only one of high value, and it was the least interesting of his three works in the auction. Considering there were 48 other lots by Wegman and that the Meyerowitzes were badly faded, I’d say this was a clear tactical victory for Sotheby’s and Stoebner. However the larger issue of keeping the rest of the Collection together is an important win for the artists and the photography community. More on that in a moment.

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John R. Stoebner, Esq.

In the months leading up to the sale, George H. Singer of Lindquist & Vennum, legal counsel to John R. Stoebner, the Chapter 7 Trustee, threatened critic A. D. Coleman with legal action. Coleman has covered the issues surrounding the sale of the Polaroid Collection extensively on his blog, Photocritic International. Coleman, while arguing for the historical importance of the Polaroid Collection and the benefits to scholars of keeping it together, also correctly pointed out that Polaroid’s agreements with artists in the Artist Support Program were not transfers of ownership, although as reported in our preview last issue, these arguments were set aside by the Minnesota Bankruptcy Court, ruling that the issue was resolved in the 2001 bankruptcy in Delaware. The Delaware court, however, had not been not aware of those agreements; Polaroid conveniently had not provided them to that court, and thus the artists in the Collection, stakeholders in the bankruptcy, had not been informed of the proceedings or of their rights in those proceedings.

George H. Singer, Esq.

On December 30, 2009, Singer wrote to Coleman, in part, “You are advised and given notice that the Trustee reserves the right to recover damages and to seek other appropriate relief against you and all other parties for any losses sustained or expenses incurred in connection with misstatements and conduct that is designed to interfere with the anticipated sale of the artwork or diminish its value. Similarly, you should also recognize that Sotheby’s has informed the Trustee that it reserves the right to seek damages attributable to inappropriate statements and actions that deter bidders or otherwise adversely impact the auction.”

According to his biography on the Lindquist & Vennum website, “Before joining Lindquist & Vennum, George served as a staff attorney for the National Bankruptcy Review Commission, which reported to the President, Congress, and U.S. Supreme Court and made recommendations for reform that were considered in connection with the adoption of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.” This act, signed into law by President George W. Bush, is an odious piece of legislation that was passed after eight years and $100 million worth of lobbying by the credit card companies, over the opposition of leading consumer groups, legal scholars, and many others. Of course the bills did little to rein in the high interest rates and fees of the credit card companies that are a contributing factor in many bankruptcies. On his page, Singer also touts his providing commentary for Fox News. Enough said.

Christopher Mahoney

The threat from Stoebner was reiterated explicitly in a meeting between Coleman, Mitchell Zuckerman of Sotheby’s, and Christopher Mahoney of Sotheby’s, in Zuckerman’s Manhattan office on March 2, 2010. Zuckerman spoke to Coleman on behalf of Stoebner on that occasion. Zuckerman is Chairman of Sotheby’s Financial Services, Inc., since 2007, and President of Sotheby’s Ventures, LLC, since 1997. Mahoney is second-in-command to Denise Bethel in Sotheby’s Photographs Department.

It is my considered opinion that Sotheby’s, Singer, and trustee John Stoebner, who had threatened A. D. Coleman with a lawsuit, should instead be sending him a dozen, long-stemmed, red roses; a bottle of Charles Heidsieck 1995 Blanc des Millénaires champagne; and The Farmer’s Market Feast with a 56-piece Every Flavor Box, a 28-piece box of fruit squares, a 12-piece box of dipped apricots, and a 6-piece box of raspberry chocolates from John & Kira’s chocolates. For the very small and inconsequential price of removing a handful of lots from the sale, Sotheby’s gained publicity and notoriety for the auction far in excess of what they could have generated on their own. The idea of the scarcity of these objects and the vague hint that this may be a very fleeting opportunity to obtain them certainly ginned up the bidding enormously.

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I also found Sotheby’s to be rather disingenuous in the statement touted in their catalogue and on their website: “Sold by order of the U.S. Bankruptcy Court for the District of Minnesota.”

They repeated it in their post-sale press release when they wrote: “The collection was sold by Order of the United States Bankruptcy Court for the District of Minnesota. John Stoebner, the court appointed bankruptcy trustee said: ‘Sotheby’s did a superb job in accomplishing our primary goal — to achieve funds with which to pay creditors. We are very pleased with the outcome and that in this process, the auction of Photographs from Polaroid brought worldwide attention to this remarkable collection.’”

In my reading, the Court ordered no such thing. In papers filed on August 28, 2009, the Minnesota Bankruptcy Court wrote: “1. The motion to sell the Auction Items in the Collection free and clear of liens, claims, encumbrances and interests and outside the ordinary course of business . . . is in all extents GRANTED.” [capitals original]

Polaroid Collection auction catalogue

They granted the right to sell the works free and clear (thus sweeping aside the photographers’ claims); they did not order them sold. At any point the Trustee could have sold the works privately or donated them to an institution if he deemed it as meeting his fiduciary responsibility. There was no order to auction the work at Sotheby’s. Claiming there was gave Sotheby’s some moral cover; that’s all. Sotheby’s is a for-profit corporation that exists to make money. It is not an altruistic enterprise. Their cataloguing of this part of the collection was exemplary, and should serve as a valuable resource for those who wish to study the Collection. But Sotheby’s does not exist to represent the moral rights of photographers. This is no surprise and there was no good reason for them to pretend otherwise.

[Editor’s Note: Technically, the ruling by the Minnesota Bankruptcy Court that enabled this auction to go forward is called a “court order,” generically. Perloff, however, is absolutely correct in pointing out — as I have — that the request to auction the work was initiated by the Trustee and not by the court, which merely granted the Trustee’s request. The reiterated assertion that “the collection was sold by Order of the United States Bankruptcy Court for the District of Minnesota” thus masks the fact that this sale results from a decision on the disposal of this portion of the collection made by Trustee John R. Stoebner, who had other options and chose this one. — A. D. C.]

(To be continued.)

Part 3 of 5 : 1 I 2 I 3 I 4 I 5

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Stephen Perloff, by Judith Harold-Steinhauser

Stephen Perloff is the founder and editor of The Photo Review, a critical journal of international scope publishing since 1976, and editor of The Photograph Collector, the leading source of information on the photography art market. He has taught photography and the history of photography at numerous Philadelphia-area colleges and universities and has been the recipient of two grants from the Pennsylvania Council on the Arts for arts criticism. He was the recipient of the Sol Mednick Award for 2000 from the Mid-Atlantic region of the Society for Photographic Education and the first annual Vanguard Award from the Philadelphia Center for the Photographic Image in 2007.

Text copyright © 2010 by Stephen Perloff. All rights reserved. Published by permission of the author. To contact Stephen Perloff, email him at info [AT] photoreview [DOT] org.