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Polaroid Collection: Update 3

Alas . . . All Our Love’s in Vain

First, the good news: Four of the letters objecting to the proposed Minnesota Bankruptcy Court approval of sale of the Polaroid Collection — those sent by myself, Judy Dater, Bea Nettles, and Jan Pietrzak — arrived in time to get entered into the record as formal objections to the motion to approve this sale. Click here for the August 27, 2009 calendar of Judge Gregory Kishel of the Bankruptcy Court, and scroll to the bottom of the screen. And a number of other such letters — from Joan Lyons, John Divola, Eileen Cowin, and Melanie Walker (for the trust overseeing hers and her father Todd Walker’s ongoing interests) — came to the court’s attention, and got mentioned by the Hon. Judge Gregory F. Kishel during the hearing.

That’s the only good news. Now comes the bad news: At this hearing, the Bankruptcy Court approved the sale of the Polaroid Collection by Sotheby’s in June of 2010. Click here for a pdf of the order authorizing the sale, effective as of August 28, 2009. Barring an appeal of the decision, or a class-action suit, this seems likely to stand as the last word.

rabble-1During the proceedings George H. Singer, Esq., the attorney advocating the sale on behalf of the current owners of the collection, described my last-ditch effort to intervene in the planned dissolution of this irreplaceable resource as an attempt to “rabble-rouse an army full of people concerned with photography.” (See George Slade’s report on the hearing, elsewhere in this blog.) The court, in the person of Judge Kishel, accepted this characterization of me without a blink, thereby tacitly endorsing its implication that “an army full of people concerned with photography” would constitute a “rabble.” This tells us all we need to know about Judge Kishel’s respect for professionals in our field, and also how the current owners of the Polaroid Collection view us.

The same attorney also asserted that the letters represented an “orchestrated and engineered” campaign. (As opposed to the other, superior, respectable type of campaign — the random, accidental one.)

rabble-2Be that as it may, in response to that flurry of letters, the current owners of the Polaroid Collection filed a motion to dismiss the objections, which the court approved. This motion enjoins me from conducting exactly the campaign I initiated, especially since I have no standing in the current case. (Meaning I’m not a principal in it, someone directly and tangibly affected by the decisions, which the photographers arguably are.) Indeed, if I read the supporting documents (Schedules A-C and Schedule D) correctly, I was enjoined from doing so before I started. Which I didn’t know, and which might not have stopped me. But, having been officially served with this motion, and acknowledging that service here, I hereby throw in the towel. Click here for the motion to dismiss the objections, and here for supporting documents Schedules A-C and Schedule D.

rabble-3Reconstructing the history of how we got to the present lamentable and apparently terminal juncture, and incorporating understandings gleaned from some of the documents attached to the Motion to Dismiss, I offer the following sketch:

The Polaroid Collection, as I’ll refer to it henceforth (including the U.S. collection, which began first, and the subsequent European collection), originated when Dr. Edwin Land, Polaroid’s inventor and founder, got Ansel Adams involved in commissioned testing of Polaroid film and equipment shortly after the company made its debut in the late 1940s. Adams sent in extensive reports and examples of his experiments with this technology, and recommended other photographers to Land for the same purposes. From these seeds came the collection.

Eventually the collection got formalized, with curators, exhibitions, publications, document archives, and connections to a parallel in-house Artist Support Program and Education Support Program. These all fed each other in fruitful ways, and nourished the creative and educational communities in exemplary fashion by providing a comparative flood of film, cameras, and access to time in the Polaroid 20×24 and 40×80 studios.

The curators and directors of these projects — including, but not restricted to, Eelco Wolf, Manfred Heiting, Jon Holmes, Sam Yanes, Linda Benedict-Jones, and Barbara Hitchcock — created an environment for photographers and artists using Polaroid tools and materials that was consciously constructed to be as artist-friendly as possible. Its policies in this regard were perhaps unparalleled in their granting of ongoing rights to artists to access their own works after they entered the collection.

"Rabble-rouser" A. D. Coleman

"Rabble-rouser" A. D. Coleman

I’ve now seen or heard read to me at least 8 different letters of agreement and/or contracts by which works entered the collection. I’m told that several people crafted their own letters for that purpose, on which Polaroid representatives signed off. The terms of these agreements vary considerably, because the works were acquired most often on a barter/exchange basis and because they were obtained not through galleries but directly from the photographers in the majority of cases. Whatever goods or materials or services Polaroid provided in return for the works, Polaroid invariably granted the photographers the ongoing right to borrow the works from the collection for exhibition purposes and also for the purpose of photographing or scanning them for reproduction. I know of no other collection that has proved so generous.

For example, an information sheet numbered 1334S, dated 1/20/86, and titled “THE POLAROID 20X24 STUDIO, BOSTON,” sent by Barbara Hitchcock to an artist applying for support, states the following in describing use of this camera and studio by those accepted into the artist-support program:

“Photographs taken during each session belong to the artists. In exchange for studio time and film, Polaroid will select one out of 8 images. If editions are made, a complete edition, still maintaining the 1 to 8 ratio will be selected for Polaroid’s International Collection.

“Collection images are exclusively used for exhibition and editorial (non-commercial) purposes with Polaroid retaining all rights. The photographer does, however, retain access to his/her images for exhibition and publication purposes.”

That’s not exactly clear transfer of unencumbered and outright ownership with permission for sale, by my lights — though, as the court has made clear, my legal savvy leaves much to be desired.

From the evidence, all of those involved — artists and photographers, Polaroid curators and program directors — assumed, perhaps naïvely, that the Polaroid Corporation would last forever and that, even if it didn’t, the Polaroid Collection would endure as an integral repository, perhaps under some other institutional roof. Nothing in the contracts and letters of agreement anticipates or creates protection for artists and photographers represented in the event of the collection’s dissolution. Everyone involved seems to have acted on a good-faith basis. We can consider all of them, along with the artists and photographers who signed these agreements, overly optimistic. However, in my opinion, “No blame attaches,” as the I Ching says.

As I now understand it, the moment at which the Polaroid Collection became entirely the possession of the Polaroid Corp. was back in ’02, during the Delaware bankruptcy hearing. At the request of Polaroid’s then-counsel, the Delaware court declared the collection an unencumbered asset. If there was a moment of potential intervention in this situation, that was it — because the corporate entity seeking that declaration was the entity that had made those contractual arrangements with the photographers in the first place, and those contracts were still enforceable. (Note: At that time Polaroid estimated the size of the collection as “in excess of 24,000 items,” and described its value as “undetermined.” See Exhibit A, clause 9, “Art Objects.”)

Polaroid 95A Camera

Polaroid 95A Camera

So, in 2002, Polaroid asked the Delaware Bankruptcy Court to authorize the sale of its assets, including the entire Polaroid Collection, “free and clear of all liens, claims, encumbrances and interests” — such as those represented by the photographers’ pesky contractually binding rights “in perpetuity” to access for exhibition and publication purposes, any “permanent loan” ambiguities, or other troublesome matters. Polaroid, perhaps deliberately, did not present the collection as having significant value in its request for permission to sell it off. None of the artists therein are named, the filing includes no inventory of contents, and the description of the collection in the filing occupies a mere three sentences.

Clearly the court treated this as an incidental and insignificant asset — not inappropriately so, in proportion to the larger crisis of Polaroid’s financial collapse. In any case, the court agreed to declare the collection (along with many other Polaroid assets) saleable without restriction.

There may have been a window of opportunity for some short period thereafter for those with standing (the photographers) to object to this summary disposition of their works and termination of their related contractual rights. But that window closed long ago, when the statute of limitations expired. The MN court thus has simply reaffirmed the Delaware court’s decision. And while I don’t appreciate the court’s mockery of me and my colleagues at the hearing in St. Paul, I have to recognize that Judge Kishel probably made the only decision the law allows. At this point, after two such affirmations, and with the collection having now changed hands at least once, I think no further intervention is possible.

For an index of links to all posts related to this story, click here.

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8 comments to Polaroid Collection: Update 3

  • Donna-Lee Phillips

    A. D. —

    I’ve always thought of you as a Rabble Rouser, your purpose precisely to “rabble-rouse an army full of people concerned with photography.” Watched you do it for decades, and have been very proud to be included in The Rabble as much as possible.

    This whole thing with the Polaroid collection is one more stone on what feels like a very large cairn atop what we used to imagine was “civilization.” To me, works of art have always been more like living things than commodities, and Polaroids — due to their one-of-a-kind nature in most forms — unique living things.

    Since it is quite clear that artists involved in Polaroid projects DID AND DO retain title to their works — always an issue with some ambiguity written in the fine print — this whole thing reminds me of one more installment in the contemporary robber-baron saga. Is there much difference between the “owners” of the collection and AIG or Bernie Madoff? Not that I can see.

    For all your pesky objections, interruptions, and attempts to halt the decimation of the collection and the rights of the artists, I am very thankful. Unfortunately individuals, or even Rabbles, seem to have little power against the might of money.

    Shall I shed tears over the fate of the collection? Yes. I was never successful in presenting a proposal that Polaroid wanted to fund, but there are precious few of the images and/or the artists who are not familiar to me, and who have not in some way shaped my own work.

    Did I hope for a just outcome in the hearing?? No. I did not dare to hope, or at least I tried not to. What I have seen and experienced as the small fry in legal matters has not given me much fuel to ignite real hope.

    What now? This may sound corny, but as I wrote that … intending it to be my last word … a thought flitted through my dented brain. RACord, my beloved mentor, began saying thirty years ago that what this country needed was a good revolution.

    As I wonder how you must feel, sadness is in the air. I don’t think more could have been done, or that you could have done anything further even as far back as “when the window was open.” Thank you, and please keep rousing the rabble.

    [DL unleashes a long, colorful string of expletives]

    Yr Mst Hmbl & Obdt Svt.

  • A. D. Coleman

    Thanks for those good words, Donna-Lee. From my standpoint, it would have been sadder still to let the collection slip away without at least some hint of protest and lament from the “photography community,” however we might define that these days.

    In fairness to the Minnesota court, its smugness aside, I think the situation left no other legal choice available. If Polaroid’s breach of contract with the artists in the collection did take place back in ’02 in the Delaware proceeding, then the reassertion of their rights in relation to their works had to happen then or shortly thereafter. That boat sailed some time back; we just didn’t realize it. That’s when the collection as we knew it got killed; Kishel simply put the last nail in the coffin.

  • Hi, Allan:

    Throwing in the towel will leave you more time to rabble-rouse elsewhere … love, enos.

    ps. I did send my two letters.

  • The invisible hand of the market writes. And having written moves on, leaving behind it an indecipherable pile of fragments. Sadly all collapses together. Sorry about that dam-ah fool judge.

  • Robert A. Ripps

    I had forgotten I was a member of such an august group — thanks for the wake up call/call to arms, A. D., even if it is too late. Makes me want to give my old SX-70 a hug right about now.

    I was just made aware of this today, or I surely would have sent my letters, as I too have been accused of being a rabble-rouser. Maybe MOMA will purchase it in its entirety, so I can become a part of that illustrious group ;).

    • I don’t think you read the most recent posts. There’s still hope.

      I’m presently looking at several prospects for an attorney who would file a Motion for Rehearing (per Sam Joyner’s informed assessment and proposal). See Joyner’s Guest Post, and my response to it.

      Toward that end, I’m assembling the names and email addresses of photographers who would want to be included in that motion if I can find a lawyer to handle it pro bono.

      I’ve put your name and contact info on that list.

  • Back in 1978-9 I was, I believe, one of the first to use the 8×10 film and processor. Two streaks were appearing equal distance from the edges along the length of the prints. I’d overnight the prints and remaining films from Ft. Collins, CO to Cambridge, MA. They send new boxes the next day. It became apparent that the problem was the method of separating the development pod into three pods by stamping the pod at 1/3 increments, the stamping being parallel to the edges of the film, which caused the chemicals to not blend at their edges. By changing to a diagonal stamping techniques the chemicals would then flow together and thus eliminated the streaks.

    I kept two of the problem prints and still have them. All the new films worked quite well.

    So, do I have prints in the Collection? I truly do not know.

    At the end of this problem-solving they invited me to become a Beta site for a new scanner they had in the mill and I spent a couple days in Cambridge with their research group. I still have the scanner, I think?!

    Anyway, having been involved in some previous class action lawsuits, one against California that forced the State to pay back $900 million to car owners a few years back, it seems to me that some sort of filing with an Appellate Court or the Supreme Court seeking an overturning of the Delaware Court’s judgment might be an alternate route. Maybe Gerry Spence in Jackson Hole, WY would be interested. He supports the underdog all the time and has been very supportive of allowing me to give some of his writings to my photo students.

    • So far as Exhibit B (the inventory prepared by Sotheby’s) goes, you’re not in the collection, Don. There’s a small cluster of 47 “Photographer Unknown” pieces in that inventory. And then of course there are the 6000-8000 pieces unaccounted for but mentioned in several previous estimates of the collection’s size.

      Still working on identifying an attorney to handle this. More on that later in the week.

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