The Art Newspaper

Rights battle over Polaroid sale

Former judge urges artists to go to court over original contracts before June auction

By Charlotte Burns. Market, Issue 211, March 2010
Published online: 09 March 2010

A selection from the Polaroid collection is due to go under the hammer at Sotheby’s New York on 21 and 22 June. The auction of more than 1,200 works is estimated to fetch $7.5m-$11.5m. As we went to press, Joyner said: “We have certainly had a number of photographers saying they would be interested in having their rights preserved. We are evaluating the possibilities.”

The once-mighty Polaroid Corporation (famed for its invention of instant, negative-free photographs, but since eclipsed by digital photography) filed for bankruptcy twice in the past decade—most recently in 2008 in connection with a $3.65bn Ponzi (investment fraud) scheme at parent company Petters Group Worldwide. The Polaroid name and assets—barring the photo­graphy collect­ion—were ac­quired by private equity firm Hilco Consumer Capital and liquidator Gordon Brothers Group, for $88m in 2009. The collection remained behind with the defunct Polaroid Corporation, renamed PBE, and is in the hands of PBE’s liquidators.

The Polaroid Collection chronicled decades of experimentation by artists including Andy Warhol, Chuck Close, Ansel Adams and William Wegman. The collection was the initiative of Polaroid founder Edwin Land, who gave film and equipment to leading artists in exchange for photographs.

While many of the photographs in the collection were owned outright by Polaroid—including a core group of vintage gelatin-silver prints assembled for Polaroid by Ansel Adams in the 1950s and around 400 photographs taken by Adams himself—there are a “significant” number of agreements that did not “give full and complete commercial rights” to Polaroid, according to Joyner. He hopes to galvanise artists involved in the collection to file motions for a rehearing, and is contacting hundreds of photographers in a bid to check their original agreements with Polaroid.

Polaroid’s right to sell the collection—and the subsequent rights of the purchasers—was dependent upon the language used in the agreements, said Joyner. Some of the agreements only granted Polaroid licence to exhibit and publish the works for non-commercial use, he said. 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”. He cites a sample Polaroid Collection Release form to artists which specifically grants “worldwide non-exclusive rights for exhibition and editorial (non-commercial) publication purposes of the…images in perpetuity”—rather than constituting a commercial bill of sale.

A spokesman for Sotheby’s issued a statement saying: “On August 28, 2009 the federal bankruptcy court in St Paul approved Sotheby’s auction of approximately 1,200 works from the Polaroid Collection. Public notice of the hearing was given in the national media, and the hearing was well publicised. This order was not appealed and now has become a final order of the United States Bankruptcy Court. Proponents of a rehearing have been searching for a lawyer and a photographer whose work is in the auction to request a rehearing since the Court issued its order. None has emerged. Any photographer who believed that [they] were entitled to the return of [their] work had the opportunity before the first bankruptcy in 2002 and again in 2009 to assert the basis for her claim. A few claims from photographers not represented in the auction were made and they were all rejected by the court. No claim has ever been made to any of the items in the upcoming auction, nor has any court or Sotheby’s been presented with any agreements that entitle the photographer to the return of any work in the scheduled sale.”

“I don’t think that the number of these licence agreements was presented to [the Judge] as fully and completely as it should have been,” said Joyner. “We hope to provide them with that full knowledge. There are hundreds of photographers, and thousands of images involved.”

“These were not legal bills of sales but subsidiary agreements,” said cultural journalist A.D. Coleman, whose blog Photo­critic International has served as nexus for information, and forum for discussion, about the collection. It was through this site that Joyner first became aware of the situation.

Coleman has posted key court papers on his site which appear to reveal a major discrepancy in the collection inventory—approximately 8,000 works from the collection seem to be missing. The Schedule of Assets and Liabil­ities submitted by the original Polaroid Corporation to the Delaware Bankruptcy Court on 17 December 2001 states: “Polaroid maintains a collection of photographs and other art objects estimated to be in excess of 24,000 objects.” Meanwhile, the 2009 motion to sell the collection which was filed to the Minnesota Bankruptcy Court reads: “The Debtor seeks authorisation to (i) sell all or a portion of the approximately 16,000 items that comprise its iconic fine art photography collection.” It is unclear where the other 8,000 works are.

Only a fragment of the original collection is coming to auction. “It is a vast collection and we concentrated on what we felt were the most valuable [works] for our purposes and fair market value,” said Denise Bethel, director of Sotheby’s photography department.

For now, once again, the future of the collection seems uncertain. “We have already had institutional interest,” said Bethel. “But private collectors can be very fierce when it comes to getting things they want.”