According to a press release dated last Friday, on December 16, 2010 Richard “Rick” Norsigian and PRS Media Partners “publicly announced the filing of a counterclaim against the Ansel Adams Publishing Rights Trust. The primary allegations of the four-count suit involve claims for slander and civil conspiracy.” (For Reyhan Harmanci’s New York Times story on this, “Another Legal Twist In Ansel Adams Case,” dated December 17, click here.)
I’ve indicated previously that I fully expect the Adams Trust to prevail in its trademark-violation suit against Norsigian and PRS Media Partners. Yet it’s no contradiction to say that it wouldn’t surprise me if the latter consortium prevailed in its own lawsuit. For one thing, it’s not exactly a countersuit or counterclaim, as I understand the definition: “To bring proceedings against (a plaintiff) in direct opposition to a suit brought against oneself.” This new suit does not contradict, or even address, the issue of trademark violation around which the Adams Trust’s suit centers.
Collector Rick Norsigian. Image courtesy of Rick Norsigian.
The question, then, is not an either/or one — either Team Norsigian violated the Adams Trust trademark or the Adams Trust slandered and conspired against them. It’s a both/and situation, wherein two judges could find for the plaintiffs in both cases, without any necessary reference to the outcome of the other one.
Reminding you that I’m not a lawyer (and don’t play one on TV, either), I see only one area of overlap between the two suits, small but not insignificant. The Team Norsigian press release concludes, “The counterclaim alleges that the ‘coordinated reversal of neutrality by the CCP, together in concert with the Trust,’ diminished the value of Norsigian’s find thereby interfering with a prospective economic advantage.” The “prospective economic advantage” inherent in these negatives, I think, might depend on how the judge rules in the earlier trademark-violation suit.
"National Park Naturalist Ansel Hall." Courtesy Rick Norsigian.
I anticipate an opinion in the Trust’s lawsuit against Norsigian et al that any marketing of prints or licensing of usage rights to these images that attributes them to Ansel Adams will constitute actionable violation of Adams’s trademarked name. In that case, even if the negatives do get credibly authenticated as made by Adams, the only way Norsigian could profit from them would be by selling the negatives themselves — or, possibly, putting them on tour and charging admission to see them. I’ve argued previously that the negatives themselves do have substantial value if proven to be part of Adams’s output, so there is certainly an “economic advantage” at stake here, which the CCP’s behavior has affected adversely. But the court is likely to define that advantage narrowly, and may well look at the decision in the suit against Norsigian for relevance in determining the nature and size of that advantage.
Katharine Martinez, incoming CCP Director.
I had no advance notice that this new lawsuit loomed. Yet it lurks, implicitly, in the chain of scandalous emails between the Adams Trust, the Center for Creative Photography, and the administration of the University of Arizona-Tucson, of which the CCP is a part. That exchange — made public in Reyhan Harmanci’s article, “Ansel Adams or Not? More Twists” in the New York Times, November 9, 2010 — led to CCP Director Katharine Martinez inappropriately and unethically issuing a public statement patently intended to discredit the Norsigian negatives, on which neither she nor any other CCP staffer had ever laid eyes. Team Norsigian cites that correspondence as primary evidence for its lawsuit. Now the disclosure of the CCP’s policies and practices regarding authentication of Adams materials adds further support to their case.
In the first part of this reconsideration, I took some pains to spell out the recently revealed information that the CCP routinely provides “authentication consults” for individuals holding material they believe to be by Ansel Adams, and has done so for some time now — and that this represents a significant change of CCP policy. (See Rebecca Rillos, “Ansel Adams authenticated: Center for Creative Photography verifies claims of original works,” Arizona Daily Wildcat, November 23, 2010.) I also took pains to demonstrate that this new practice appears to have gone into effect sometime during the past decade, with minimal publicity.
I didn’t go into such detail just to be windy, as an appended comment from Bruno Chalifour intimates (though I’m surely capable of that), nor to rationalize my own prior misstatements of the Center’s functions. This revision of CCP policy has direct and significant bearing on Team Norsigian’s prolonged efforts to authenticate the 65 glass-plate negatives Rick Norsigian found at a Fresno yard sale and believes were made by Ansel Adams. And Team Norsigian’s case against the Adams Trust surely got strengthened by the publication of Rillos’s November 23 news story.
Dr. Douglas R. Nickel
To recap: Up through 2000, and the end of the administration of director Terence Pitts, the CCP did not engage in authentication of Adams materials in the possession of outside parties, insofar as I can determine. Upon Pitts’s departure the CCP entered a period of disarray and restructuring, engaging three directors over the next ten years. The first of these was Dr. Douglas Nickel. As Margaret Regan reported in her story “Stabilizing Center,” Tucson Weekly, August 14, 2010, “turmoil . . . wracked the center for years prior to Nickel’s arrival. That power struggle between the staff and the UA Dean of Libraries, Carla Stoffle, left the center without a director for three years and without a curator for two; numerous other positions were also left empty by fleeing staff. Curator [Trudy] Wilner Stack resigned a year after Stoffle fired the previous director, Terry Pitts. A Yale-trained scholar and talented writer, Stack had staged a decade’s worth of critically acclaimed exhibitions.”
Britt Salvesen. Photo courtesy Los Angeles County Museum of Art.
Douglas Nickel took office as the CCP’s fourth director in August 2003. Dr. Nickel brought Britt Salvesen in as head curator in October 2004. Upon his departure in June 2007 for a teaching position at Brown University, Salvesen became Interim Director, then got appointed Director in March 2008. But her directorship lasted just 18 months, through August 2009, when she left for the Los Angeles County Museum of Art. Finally, after yet another search, Katharine Martinez took office in July 2010, just in time to step into this mess.
According to the Rillos news story, this Adams authentication process is now a “normal activity” for the Center. “[P]eople come to the center almost monthly for authentication consults regarding possible Adams photographs.” If this is indeed a “normal activity,” with an elaborate set of verification protocols in place, the Center surely began to offer it well before Martinez came on board this past summer. Thus the CCP inaugurated it either on Nickel’s or Salvesen’s watch.
If it happens roughly monthly, as Rebecca Senf, acting senior curator for the CCP, told Rillos, and has gone on long enough to become a “normal activity” for the CCP, then it seems safe to propose that dozens of individuals to date have brought potential Adams materials to the Center, which has authenticated or invalidated those items for them via these procedures, at no charge.
Dean Carla J. Stoffle
It’s inconceivable that any CCP director and staff would initiate the official offering of such a service without formal approval by the chain of command. That chain includes Carla J. Stoffle, Dean of Libraries and the Center for Creative Photography at the the University of Arizona-Tucson (the CCP’s Director reports to her); the CCP’s Board of Fellows, which includes John P. Schaefer, co-founder with Ansel Adams of the CCP when Schaefer ran the university; and the Ansel Adams Trust, on whose board Schaefer also sits, along with managing trustee William Turnage and Los Angeles attorney David H. Vena. (The latter’s former law firm, Latham & Watkins, now represents the Adams Trust in the trademark-infringement lawsuit filed by the Adams Trust against Rick Norsigian and Arnold Peter’s firm, PRS Media Partners.) Having all these hands on the tiller, in itself, explains why CCP directors don’t last long. That condition gets aggravated by the fact that, as one former staffer (who prefers to remain anonymous) described to me these various influences on the Center, “It’s a real nest of vipers.”
In her follow-up story — and I assume she’ll write one — Rillos should then pursue this further, in order to determine just how the CCP got into the authentication biz. She might start by seeking answers to the following questions:
Ansel Adams's signature
• When did authentication of Ansel Adams material become a free service provided by the CCP?
• Under whose directorship did that occur — Nickel’s, Salvesen’s, some interim figure’s?
• With whom did the idea for this service originate? The CCP’s director and staff? The CCP’s Board of Fellows? Dean Stoffle of the UofA library system? The Ansel Adams Trust?
• What paper trail embodies the debate over instituting this service that necessarily took place behind the scenes before its adoption and introduction to the CCP’s repertoire?
• What printed announcements, press releases, or other public notices established this service as a CCP function when it began, and what presently serves to make the public aware of its availability to them?
Center for Creative Photography, Tucson, AZ
• Who signs off on the results of an “authentication consult” as a representative of the CCP? By what authority? Who else, if anyone, endorses these final reports?
• What written or verbal agreements with the Ansel Adams Trust, if any, govern this service? For example, should an “authentication consult” uncover a hitherto unknown Adams work, and should the Center acknowledge that fact in a report, would that bind the Adams Trust to endorse the outcome and accept that new material as a legitimate component of Adams’s work?
• Does the CCP’s authentication process involve any form of communication with or corroboration/approval from the Ansel Adams Publishing Rights Trust?
• Does the CCP similarly authenticate materials possibly created by other photographers whose archives reside there? If not, why not? If so, do they use the same test protocols, and do the same agreements with those additional photographers and/or their estates govern those authentication procedures?
I’ll go into the relevance of all this to the Team Norsigian lawsuit, and to Team Norsigian’s authentication project, in my next post.
(To be continued.)
•
For an index of links to all previous posts related to this story, click here.
•
In the spirit of the holidays, and as a way of wishing my readers well for the season, here’s an anonymous photomontage forwarded to me this week.
Rick Norsigian with altered negative. Anonymous photomontage, 2010.
Note to the montagist: Good job, except for one wee detail — Trixie should have been negative, not positive.
A hearty ho ho ho to all of you; may you find no lumps of coal in your stockings on Xmas morn.
SPJ Research Award 2014
Adams Authentication and the CCP (2)
According to a press release dated last Friday, on December 16, 2010 Richard “Rick” Norsigian and PRS Media Partners “publicly announced the filing of a counterclaim against the Ansel Adams Publishing Rights Trust. The primary allegations of the four-count suit involve claims for slander and civil conspiracy.” (For Reyhan Harmanci’s New York Times story on this, “Another Legal Twist In Ansel Adams Case,” dated December 17, click here.)
I’ve indicated previously that I fully expect the Adams Trust to prevail in its trademark-violation suit against Norsigian and PRS Media Partners. Yet it’s no contradiction to say that it wouldn’t surprise me if the latter consortium prevailed in its own lawsuit. For one thing, it’s not exactly a countersuit or counterclaim, as I understand the definition: “To bring proceedings against (a plaintiff) in direct opposition to a suit brought against oneself.” This new suit does not contradict, or even address, the issue of trademark violation around which the Adams Trust’s suit centers.
Collector Rick Norsigian. Image courtesy of Rick Norsigian.
The question, then, is not an either/or one — either Team Norsigian violated the Adams Trust trademark or the Adams Trust slandered and conspired against them. It’s a both/and situation, wherein two judges could find for the plaintiffs in both cases, without any necessary reference to the outcome of the other one.
Reminding you that I’m not a lawyer (and don’t play one on TV, either), I see only one area of overlap between the two suits, small but not insignificant. The Team Norsigian press release concludes, “The counterclaim alleges that the ‘coordinated reversal of neutrality by the CCP, together in concert with the Trust,’ diminished the value of Norsigian’s find thereby interfering with a prospective economic advantage.” The “prospective economic advantage” inherent in these negatives, I think, might depend on how the judge rules in the earlier trademark-violation suit.
"National Park Naturalist Ansel Hall." Courtesy Rick Norsigian.
I anticipate an opinion in the Trust’s lawsuit against Norsigian et al that any marketing of prints or licensing of usage rights to these images that attributes them to Ansel Adams will constitute actionable violation of Adams’s trademarked name. In that case, even if the negatives do get credibly authenticated as made by Adams, the only way Norsigian could profit from them would be by selling the negatives themselves — or, possibly, putting them on tour and charging admission to see them. I’ve argued previously that the negatives themselves do have substantial value if proven to be part of Adams’s output, so there is certainly an “economic advantage” at stake here, which the CCP’s behavior has affected adversely. But the court is likely to define that advantage narrowly, and may well look at the decision in the suit against Norsigian for relevance in determining the nature and size of that advantage.
Katharine Martinez, incoming CCP Director.
I had no advance notice that this new lawsuit loomed. Yet it lurks, implicitly, in the chain of scandalous emails between the Adams Trust, the Center for Creative Photography, and the administration of the University of Arizona-Tucson, of which the CCP is a part. That exchange — made public in Reyhan Harmanci’s article, “Ansel Adams or Not? More Twists” in the New York Times, November 9, 2010 — led to CCP Director Katharine Martinez inappropriately and unethically issuing a public statement patently intended to discredit the Norsigian negatives, on which neither she nor any other CCP staffer had ever laid eyes. Team Norsigian cites that correspondence as primary evidence for its lawsuit. Now the disclosure of the CCP’s policies and practices regarding authentication of Adams materials adds further support to their case.
In the first part of this reconsideration, I took some pains to spell out the recently revealed information that the CCP routinely provides “authentication consults” for individuals holding material they believe to be by Ansel Adams, and has done so for some time now — and that this represents a significant change of CCP policy. (See Rebecca Rillos, “Ansel Adams authenticated: Center for Creative Photography verifies claims of original works,” Arizona Daily Wildcat, November 23, 2010.) I also took pains to demonstrate that this new practice appears to have gone into effect sometime during the past decade, with minimal publicity.
I didn’t go into such detail just to be windy, as an appended comment from Bruno Chalifour intimates (though I’m surely capable of that), nor to rationalize my own prior misstatements of the Center’s functions. This revision of CCP policy has direct and significant bearing on Team Norsigian’s prolonged efforts to authenticate the 65 glass-plate negatives Rick Norsigian found at a Fresno yard sale and believes were made by Ansel Adams. And Team Norsigian’s case against the Adams Trust surely got strengthened by the publication of Rillos’s November 23 news story.
Dr. Douglas R. Nickel
To recap: Up through 2000, and the end of the administration of director Terence Pitts, the CCP did not engage in authentication of Adams materials in the possession of outside parties, insofar as I can determine. Upon Pitts’s departure the CCP entered a period of disarray and restructuring, engaging three directors over the next ten years. The first of these was Dr. Douglas Nickel. As Margaret Regan reported in her story “Stabilizing Center,” Tucson Weekly, August 14, 2010, “turmoil . . . wracked the center for years prior to Nickel’s arrival. That power struggle between the staff and the UA Dean of Libraries, Carla Stoffle, left the center without a director for three years and without a curator for two; numerous other positions were also left empty by fleeing staff. Curator [Trudy] Wilner Stack resigned a year after Stoffle fired the previous director, Terry Pitts. A Yale-trained scholar and talented writer, Stack had staged a decade’s worth of critically acclaimed exhibitions.”
Britt Salvesen. Photo courtesy Los Angeles County Museum of Art.
Douglas Nickel took office as the CCP’s fourth director in August 2003. Dr. Nickel brought Britt Salvesen in as head curator in October 2004. Upon his departure in June 2007 for a teaching position at Brown University, Salvesen became Interim Director, then got appointed Director in March 2008. But her directorship lasted just 18 months, through August 2009, when she left for the Los Angeles County Museum of Art. Finally, after yet another search, Katharine Martinez took office in July 2010, just in time to step into this mess.
According to the Rillos news story, this Adams authentication process is now a “normal activity” for the Center. “[P]eople come to the center almost monthly for authentication consults regarding possible Adams photographs.” If this is indeed a “normal activity,” with an elaborate set of verification protocols in place, the Center surely began to offer it well before Martinez came on board this past summer. Thus the CCP inaugurated it either on Nickel’s or Salvesen’s watch.
If it happens roughly monthly, as Rebecca Senf, acting senior curator for the CCP, told Rillos, and has gone on long enough to become a “normal activity” for the CCP, then it seems safe to propose that dozens of individuals to date have brought potential Adams materials to the Center, which has authenticated or invalidated those items for them via these procedures, at no charge.
Dean Carla J. Stoffle
It’s inconceivable that any CCP director and staff would initiate the official offering of such a service without formal approval by the chain of command. That chain includes Carla J. Stoffle, Dean of Libraries and the Center for Creative Photography at the the University of Arizona-Tucson (the CCP’s Director reports to her); the CCP’s Board of Fellows, which includes John P. Schaefer, co-founder with Ansel Adams of the CCP when Schaefer ran the university; and the Ansel Adams Trust, on whose board Schaefer also sits, along with managing trustee William Turnage and Los Angeles attorney David H. Vena. (The latter’s former law firm, Latham & Watkins, now represents the Adams Trust in the trademark-infringement lawsuit filed by the Adams Trust against Rick Norsigian and Arnold Peter’s firm, PRS Media Partners.) Having all these hands on the tiller, in itself, explains why CCP directors don’t last long. That condition gets aggravated by the fact that, as one former staffer (who prefers to remain anonymous) described to me these various influences on the Center, “It’s a real nest of vipers.”
In her follow-up story — and I assume she’ll write one — Rillos should then pursue this further, in order to determine just how the CCP got into the authentication biz. She might start by seeking answers to the following questions:
Ansel Adams's signature
• When did authentication of Ansel Adams material become a free service provided by the CCP?
• Under whose directorship did that occur — Nickel’s, Salvesen’s, some interim figure’s?
• With whom did the idea for this service originate? The CCP’s director and staff? The CCP’s Board of Fellows? Dean Stoffle of the UofA library system? The Ansel Adams Trust?
• What paper trail embodies the debate over instituting this service that necessarily took place behind the scenes before its adoption and introduction to the CCP’s repertoire?
• What printed announcements, press releases, or other public notices established this service as a CCP function when it began, and what presently serves to make the public aware of its availability to them?
Center for Creative Photography, Tucson, AZ
• Who signs off on the results of an “authentication consult” as a representative of the CCP? By what authority? Who else, if anyone, endorses these final reports?
• What written or verbal agreements with the Ansel Adams Trust, if any, govern this service? For example, should an “authentication consult” uncover a hitherto unknown Adams work, and should the Center acknowledge that fact in a report, would that bind the Adams Trust to endorse the outcome and accept that new material as a legitimate component of Adams’s work?
• Does the CCP’s authentication process involve any form of communication with or corroboration/approval from the Ansel Adams Publishing Rights Trust?
• Does the CCP similarly authenticate materials possibly created by other photographers whose archives reside there? If not, why not? If so, do they use the same test protocols, and do the same agreements with those additional photographers and/or their estates govern those authentication procedures?
I’ll go into the relevance of all this to the Team Norsigian lawsuit, and to Team Norsigian’s authentication project, in my next post.
(To be continued.)
•
For an index of links to all previous posts related to this story, click here.
•
In the spirit of the holidays, and as a way of wishing my readers well for the season, here’s an anonymous photomontage forwarded to me this week.
Rick Norsigian with altered negative. Anonymous photomontage, 2010.
Note to the montagist: Good job, except for one wee detail — Trixie should have been negative, not positive.
A hearty ho ho ho to all of you; may you find no lumps of coal in your stockings on Xmas morn.