Team Norsigian Accentuates the Negative (6)

The battle is now officially joined. The headline of Brooke Donald’s August 23 Associated Press story, “Ansel Adams trust sues over garage sale negatives,” speaks for itself. (This link will take you to the version of the report that appeared at The Huffington Post.)

Ansel Adams's signature

“The lawsuit, filed in federal district court in San Francisco by The Ansel Adams Publishing Trust, seeks to stop Rick Norsigian and consulting firm PRS Media Partners from using Adams’ name, likeness and trademark in their efforts to sell prints and posters not authorized or endorsed by the Trust,” Donald writes. The report continues, “The suit alleges trademark infringement, false advertising, trademark dilution, unfair competition and other claims. It does not specify damages but asks the court to order the defendants to pay restitution of their profits from any sales, as well as award any other monetary relief.”

This doesn’t surprise me, and should surprise no one. Team Norsigian precipitated this legal challenge by commencing the marketing of prints from the disputed negatives a month ago, while ascribing them to Ansel Adams, whose name is trademarked and whose imagery is, for the most part, under copyright protection. I consider this lawsuit not only within the rights of the Adams Trust but entirely appropriate on the trust’s part.

Arnold Peter, Esq.

According to Donald, “Norsigian’s lawyer, Arnold Peter, said the lawsuit has no merit and is designed to harass his client and ‘silence this debate.’ ‘We are disappointed that the Ansel Adams Publishing Rights Trust has decided to resort to the courts in order to resolve what, in our view, is a debate that should be resolved by art and forensic experts,’ Peter said in a statement.” But this lawsuit in no way “silences,” or otherwise interferes with, the debate over attribution of these negatives. Either Peter (who’s also involved with PRS Media Partners) misses the point or he’s deliberately muddying the waters.

Because I’ve also called for expert forensic inquiry, and endorsed Team Norsigian’s call for same, I need to make my position on this matter clear. From an August 14 press release issued by Team Norsigian, it appeared that Turnage, on behalf of the Adams Trust, had agreed to cooperate with Team Norsigian in pursuing forensic testing, authentication, and authorship ascription of these negatives. In my previous post, I commended this development, assuming it ensued. But I’ve seen nothing so far from the Adams Trust verifying this agreement, and, with this lawsuit now in motion, I suspect that, like so much in this case, it was mostly wishful thinking on the part of Team Norsigian.

Regular readers of this blog know that I’ve called for such scientific inquiry into the actual materials, and have even (from my admitted layperson’s standpoint) proposed some of the tests and lines of investigation I’d consider applicable. From both a writer’s and a reader’s perspective, the war of words waged between the Adams Herd and Team Norsigian certainly provides more fun than laboratory analysis. Yet the only resolution, full or partial, that we’ll have to the conundrum of authorship will come when impartial expertise gets applied to the physical evidence.

So, in that regard, I’ve encouraged Turnage, as representative of the Adams Trust, and Matthew Adams of the Ansel Adams Gallery in Yosemite Valley, to partner with Team Norsigian in seeking to establish the truth about these negatives. The outcome — authentication or invalidation — should depend on fact, not speculation. Because this has become a high-profile situation, covered by the international press, it has turned into an opportunity to demonstrate the extent to which the field of photography has matured into one where such complex issues can be raised, investigated, and resolved in an entirely professional and credible manner, addressed with full transparency by reputable specialists whose results will meet accepted standards of testing and verification.

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But the matter of authentication is entirely separate from the legal questions involved — copyright, subsidiary rights, trademark, merchandising. Purposefully or not, attorney Peter seeks to conflate those two sets of issues. Of course the question of who made these negatives should get “resolved by art and forensic experts.” It’s intriguing to note that, implicitly, Peter has accepted the widespread discreditation of Team Norsigian’s original panel of experts; he’s offered no defense whatsoever of their previous claims to status as credible authenticators in the face of scrutiny from many corners (including this one) that has unequivocally disqualified them.

However, even assuming that a new cluster of recognized scholars, conservators, and other professionals does undertake the task of authentification, presumably pursuing that at the Center of Creative Photography in Tucson, AZ, which houses Adams’s archive, the consequent conclusions by “art and forensic experts” have no bearing whatsoever on the legality of Team Norsigian’s decision to market prints and posters made therefrom while attributing them to Adams.

Collector Rick Norsigian. Image courtesy of Rick Norsigian.

Unquestionably, as physical property, the negatives belong to Norsigian, who bought and paid for them in a legitimate transaction; so far as I can see, he’s free to dispose of them as he sees fit. And if he and his consortium had wanted to make prints and posters from them and sell those as works by “Photographer Unknown,” he’d have been free to do that also, unless and until someone claimed and proved authorship. However, even if it turns out that Adams did indeed make these negatives, Norsigian’s not automatically entitled to start his own line of Adams merchandise. The legal issue isn’t whether Adams did or didn’t make these negatives; it’s Norsigian’s use of Adams’s name to promote his product line.

Some of these works may have entered the public domain, assuming the date range ascribed to the group — “between 1919 and the early 1930s” — proves reliable, though I don’t know how exact dates of production could get established precisely with images that, excepting a few, explore the natural environment. This would hold true, as of January 1, 2010, for any of these images made and published before 1923. (Click here for a pertinent chart on copyright and public domain, from Cornell University.)

"Jeffrey Pine on Sentinel Rock." Norsigian image, left; Brooks image, right.

Since they’re all apparently unpublished until now, that may be moot. Under the law, copyright on unpublished works lasts 70 years past the author’s death, which means 2054 in the case of Adams. Not incidentally, if they get proven to be the work of “Uncle” Earl Brooks instead — more on that later ― then the copyright and subsidiary rights belong to Brooks’s heirs and assigns, and Team Norsigian doesn’t have the legal right to develop an Earl Brooks product line either. Brooks died in 1978, six years before Adams; copyright on his unpublished works won’t expire until 2048.

So copyright almost certainly protects most if not all of these works. For any of them still under copyright protection, that would affect licensing and marketing options for those images, including the production for sale of original prints therefrom. As I understand it, the Ansel Adams Publishing Rights Trust has the exclusive legal right to issue subsidiary-rights licenses to AA’s copyrighted images, and to authorize the use of his name. The Adams Trust is charged with protecting the Adams copyrights and trademark; failure to do so in any situation, especially one as high-profile as this, would set a precedent weakening the trust’s ability to fight any subsequent infringement.

That’s why this has ended up in court. It’s hardly a case “without merit,” the claim of Team Norsigian’s counsel notwithstanding. While I’ve been officially declared a non-lawyer by the Minnesota Bankruptcy Court, I have nonetheless taught seminars on copyright law and subsidiary-rights licensing for the National Writers Union, so I hold an informed layman’s opinion in that regard. These negatives would seem to be, by definition, unpublished works produced by whomever forensic experts and photo researchers determine their maker to be, assuming that can be established convincingly. If Team Norsigian claims they’re by Adams, and markets prints or licenses usages with Adams’s name attached, then copyright law and trademark law both kick in ― activated by the claim that Adams generated them.

"Looking Through the Trees." Image courtesy of Rick Norsigian.

Team Norsigian has elected to consider these negatives “abandoned property” — bought 70 years ago from private parties in southern California by Irving Schwartz, the dealer who later sold them to Norsigian. I don’t know what qualifies an item of intellectual property as “abandoned” (as distinct, say, from lost, misplaced, or stolen), nor what happens to copyright and subsidiary rights related to abandoned intellectual property. Indeed, while you can transfer ownership of copyright and/or subsidiary rights via written instrument, and place some or all of the rights to a work whose copyright you hold into the public domain the same way, I don’t know if, technically speaking, it’s possible to “abandon” an item of intellectual property. I’m certainly interested in finding out, and I assume that as this crumple unfolds we’ll learn a lot about that matter. Another reason I consider this story worth pursuing to the end.

The only areas where the projected forensic inquiry would impinge on this lawsuit would be in the possible precise dating of the negatives and the possible exact matching of them to images published by Adams and/or prints exhibited and/or sold by him. That could determine whether any of these works have entered the public domain, and how long copyright of others will endure. Otherwise that inquiry has no relevance to the lawsuit, which, according to the AP report, describes Team Norsigian’s prints as “derivative works at best,” asserting that “the defendants are improperly and unlawfully trading on Adams trademark and deliberately confusing consumers.”

"Carmel Mission." Image courtesy of Rick Norsigian.

I’d have to agree with the latter charge. As I understand it, if I find an unpublished manuscript by my shy next-door neighbor Thomas Pynchon — even if I pull it, clearly discarded, from his trash can — I don’t acquire publication rights thereto. Coming into possession of the object doesn’t bring with it the related copyright and subsidiary rights. Presumably the same rule applies to negatives, musical scores, and other encodings of intellectual property. Legislation and case law on this subject are both consistent and clear.

Aside from asserting that these negatives fall into the category of “abandoned property,” Team Norsigian has never stated the grounds on which they base their conviction that they acquired IP rights and marketing rights when Rick Norsigian took possession of these artifacts in 2000. Now they’ll have their chance to make their case in court. The smart money says they won’t prevail.

From my standpoint, Team Norsigian’s strategy has been haplessly ass-backwards from the git-go. They should have started quietly, with a serious forensic investigation by recognized experts, using the resources at the Center for Creative Photography (where Adams’s archive resides) to verify or disprove Adams’s authorship of the negatives. Based on the results, they could have moved forward to announce Adams’s authorship, if hard evidence justified that. Then they could perhaps have negotiated some agreement about rights licensing with the Adams Trust and Adams Gallery.

Ringling Bros and Barnum & Bailey combined shows circus poster, ca. 1920.

Instead, with a flourish of trumpets they sent in the clowns — a more improbable and implausible cluster of self-styled experts than I could have invented ― for a comedy of errors. The decision to rush to public announcement of the negatives as “authenticated,” to hasten to international publication of the images, to hurry to market with prints and posters made from them, and to race toward final cut and screening of a documentary film about it all, strikes me as entirely premature and exceedingly ill-advised.

Team Norsigian wants to have its cake and gobble it down at the same time. Per attorney Arnold Peter’s formulation of their position, they want the question of whether or not Adams made these negatives to remain open for an investigation that could take months — an inquiry that this consortium should have undertaken on their own, long ago — while Norsigian and con artist turned gallerist David W. Streets flog a possibly illicit line of Adams-branded goods based on those same negatives and pocket the proceeds. I predict the court won’t rule in their favor.

Part 8 of 14: 1 I 2 I 3 I 4 I 5 I 6 I 7 I 8 I 9 I 10 I 11 I 12 I 13 I 14