Polaroid on the Docket
August 27, 2009, St. Paul, MN — Maximizing profits appears to have won out over maintaining historic unity.
This afternoon, just before 2 p.m. Central time, discussion of the motion to sell Polaroid’s fine-art photography collection began, in front of the Honorable Gregory F. Kishel in U. S. Bankruptcy Court proceedings. Attorney George H. Singer, representing the debtor (Polaroid, Petters-ized), spoke for about 45 minutes, answered a small number of questions from Judge Kishel, turned the dais over to the opposing counsel (whose name sounded like “DiCorcia”) who expressed nothing more than that the committee she represented supported the debtor’s motion, and then Judge Kishel issued his ruling granting the motion in its entirety and authorizing the sale process to move forward.
Courtroom 2A in the Warren Burger Federal building in downtown St. Paul was sparsely populated but dense with interest. Among the audience (as identified by attorney Singer) were the man who will lead the resolutions beginning next Monday (Stavner? Identified by the judge as having been “hanging around for months” in the courtroom), and two representatives of Sotheby’s — Mitchell Zuckerman, Chairman, Sotheby’s Financial Services, Inc. and President, Sotheby’s Ventures, LLC, sitting in the first audience row next to Denise Bethel, Senior Vice-President, Director, Photographs in the New York office. Sotheby’s appears to be one of the major beneficiaries of the ruling; they have already fulfilled a March 2009 court-authorized commission to assess the collection and now have received permission to arrange for a sale, with proceeds going to benefit the estate (the committee representing the claimants) and buyers’ fees to benefit Sotheby’s, per standard auction-house operating procedures.
The assertion arose, early in Singer’s presentation, that, according to an initial survey, approximately 99% of the monetary value of the 16,000-item Polaroid fine-art collection resides in about 1700 items. Having revealed where the money is at, Singer had set the stage for the ultimate ruling, which was based on the fact that this collection represents significant money and is allegedly costing its owners nearly half a million dollars in annual maintenance costs. The need to generate income far outweighed the “sentimental” objections that had been filed to protest the motion; in his ruling, the judge affirmed that there was no contractual obligation attached to these assets that would link them as a collection.
The context of bankruptcy court was inhospitable to the tenor of letters received from such artists as Judy Dater, Bea Nettles, Joan Lyons, John Divola, Eileen Cowin, and Melanie Walker (for the trust overseeing hers and her father Todd Walker’s ongoing interests). Indeed, Judge Kishel chastised the writers in absentia for not having used his correct address, for using an outdated title, and for chiming in much too late in the process (though he admitted that he had been on vacation and out of his St. Paul office until yesterday). [Note: They used the title and address I provided to them, which I got from the court's official website. My bad, I'm sure, Your Excellency. — A. D. Coleman]
Kishel labeled the objections “disingenuous” and overruled them with the further statement that the documents the writers supplied didn’t support the claims being made, and that the statute of limitations for disputing ownership had expired (and been made moot by an earlier bankruptcy proceeding).
Singer and Kishel showed little respect for A. D. Coleman, either. Though acknowledging him as an established figure in the photography field, they observed that “A. C.” was not an artist, not included in the Polaroid collection, and that his goal, advancing a moral rights claim and principle, was, Singer said, to “rabble-rouse an army full of people concerned with photography.” Kishel suggested that all the letters received seemed based on a template and “voiced the same theory.” Singer said that the objections, including a letter by A. D. Coleman, were the result of an “orchestrated and engineered” campaign, and that Coleman suffered from a “misapprehension” of the laws in bankruptcy court. Coleman’s “altruistic concern was not well thought out on a legal basis,” Singer concluded, asking the judge to overrule all objections.
Chief among Singer’s arguments and oppositions to the written objections were the question of copyright. As Judge Kishel clarified, the Polaroid collection at issue in this hearing is a collection of physical objects, not licensing rights, and that documents, including one sent by Bea Nettles as an attachment to her letter, show that artists had, in fact, ceded ownership and title to the prints.
Furthermore, Singer and Kishel expounded, the fact that Polaroid underwent a prior bankruptcy, in Delaware nearly twenty years ago, means that all the company’s assets, including the fine-art collection, had been sold, free and clear of any claims or titles, physical or rights-based, that may have redounded to the photographers. [Note: Polaroid's Delaware bankruptcy proceedings took place in delaware in 2002, not 1989. — A. D. Coleman] Roughly 200 images had entered the collection since that bankruptcy; these do not figure in the motion, and are not among the 1700 “auction items” being skimmed off the collection.
There is some small hope remaining, however, for those who would like to see the collection remain intact. There is no clear disposition of the roughly 14,300 less valuable objects, which remain in the hands of whoever runs Polaroid as of August 31, when Polaroid converts from Chapter 11 bankruptcy to Chapter 7. (Friday, August 28 is the last day for all employees, though some will transfer roles and become contractors.) Sotheby’s has, apparently, offered to serve as an agent for institutions that might want to acquire the collection. Although earlier attempts to find buyers, with the 1700 “cream” works still part of the bargain, met with no acceptable offers, the auction house now has the freedom to go through the entire collection and make unspecified further arrangements regarding the items it has been given permission to auction.
Thinking it will make a huge (14,300-piece) gift to some lucky institutional repository? Not likely; the court relayed the fact that Sotheby’s, a “superior auction house” (having nudged Christie’s aside), promises a “robust” ad campaign to secure significant funds, piece by hammered-down piece, for the sake of Polaroid’s creditors.
— George Slade
St. Paul, MN
George Slade is the former director of the Minnesota Center for Photography, and editor of the book Minnesota in Our Time: A Photographic Portrait (2000). He was the recipient of a Creative Capital/Andy Warhol Foundation Arts Writers Grant in 2007.
Text copyright © 2009 by George Slade. All rights reserved. Published by permission of the author. To contact George Slade, email him at georgeslade [AT] mac [DOT] com.
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