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.
During 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.)
Be 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.
Reconstructing 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.
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.”)
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.