Art law USA

Rights battle over Polaroid sale

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

LONDON. 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. Judge Sam Joyner and others are working towards filing a motion for a rehearing at the Minnesota bankruptcy court that awarded sale rights to Sotheby’s last August.

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.”

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Comments

23 May 10
18:42 CET

MIKE, BOSTON

Gee whiz, visual art is now luggage. I never abandoned my work nor was my contract with Polaroid ever broken. Federal Law pertaining to Copyright should not be equated to lost luggage nor should assumptions be made as to what an author did or did not do to research a topic. If anyone did not do their due diligence, it was those who thought Federally protected visual works of art were open to theft after a one sided argument was presented in a Bankruptcy court. That includes Sotheby's who should know better. The artists contained in the Polaroid collection were never notified by the debtor. How was their work abandoned? The first bankruptcy did nothing to breech the contract as the Polaroid Collection remained intact. The agreement signed by artists and accepted by Polaroid stated: “worldwide non-exclusive rights for exhibition and editorial (non-commercial) publication purposes". How does that include gaining value from a sale? Read the copyright law. http://www.copyright.gov/title17/

23 Mar 10
2:10 CET

ABBY, LOS ANGELES

Interesting that one of the most respected arts columnists in this country, Carol Vogel (NY Times), chose not to mention this aspect of the issue in what is the most comprehensive and objective article about the sale of the 1200 (of some 20,000 images) photographs. It's probably because she did her homework and found this issue to be without merit. I'll be she talked with arts lawyers or NY Times lawyers, who said there's no basis for claims after two bankruptcies in a decade. Phillip, Dan, and Wilson are right. Much ado about very little. Didn't they receive free film and use of cameras in trade for a few examples of their output? If you look at the bankruptcy court's list of photographs being sold, it looks like a lot of the photographs, especially the Adams (as well as the pictures that were purchased outright) are 'work for hire' and were legitimately paid for.

21 Mar 10
16:42 CET

WILSON, JACKSON HOLE, WY

Sam Joyner is a retired federal magistrate judge for the United States District Court for the Northern District of Oklahoma. No disrespect intended to the honorable gentleman but he has no more standing or position to comment on this matter and no more authority than any other citizen. He is just a lawyer taking a position. Unless he can convince a judge sitting a in court of competent jurisdiction to reverse the standing court order than his opinion is just that. his opinion.

15 Mar 10
14:21 CET

DAN, TWIN CITIES

Yeah, that's not how it goes, Doc.

15 Mar 10
14:21 CET

A. D. COLEMAN, STATEN ISLAND, NY

If Earenfight considers a Federal Judge Magistrate’s questioning of the legality of a court’s decision as “irrational whining,” he’s entitled to his opinion, just as I’m entitled to mine. Not all opinions carry equal weight.

11 Mar 10
19:23 CET

PHILLIP EARENFIGHT, CARLISLE, PA

In the absence evidence for any direct sale, deed of gift, or other legal document of transference, are we not dealing with nothing more than abandoned property, which, after a period of time and no claims to the contrary, becomes the property of Polaroid (or in this case, those in charge of its assets)? The artists and their representatives could have and should have made their claim ages ago, long before any statute of limitations expired, let alone hearings that were held in 2002 and 2009. Let not emotions and idleness stand in the path of what we all know, these photographs are from a purely legal standpoint a physical commodity, and are thus governed by property laws. I see no reason why these will not go on the blocks at the end of June, lots of irrational whining notwithstanding.

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