It ain’t over till it’s over, as Yogi Berra famously remarked.
Presently a distinguished law firm is in dialogue with a distinguished photographer concerning the possibility of filing a Motion for Rehearing of the August 27, 2009 decision by the Minnesota Bankruptcy Court to allow the breakup and sale at auction of the unique, historic Polaroid Collection.
For obvious reasons, I can’t disclose the identities of either the law firm or the photographer, and won’t unless and until they decide to move forward with this appeal and make that decision public. If they do so, then the photographer in question would become the lead plaintiff (if that’s the right term) in the motion. He’s qualified to do so, as he has several dozen prints in the collection, which, legally, gives him standing in this case. Other photographers with works in the collection would then get invited to sign on as additional plaintiffs, starting with those who’ve communicated to me their interest in participating in such a suit. So if you haven’t sent me an email indicating your desire to join in such an action, please do that at your earliest convenience.
As I don’t have standing in this case — “no dog in the fight,” as Federal Magistrate Judge Sam Joyner puts it in his extremely helpful Guest Post here at Photocritic International — I can’t push this forward any further myself. But I can get the word out as things develop, gather names and information, provide a platform for those who have something to say on the subject, and of course voice my own opinion as matters proceed.
I find it remarkable that, at this late date, neither the photo press nor the art press has paid any significant attention to the impending dispersal of an unduplicable collection of some 16,000 images. The only notice of this so far that I’ve seen in any art/photo periodical has appeared in the small-circulation newsletter The Photograph Collector, which in several recent issues has reprinted George Slade’s report on the August hearing, along with some of my own reporting on the situation. (Let me take this opportunity to wish Stephen Perloff, intrepid editor of both The Photo Review and The Photograph Collector, a speedy and full recovery from his recent heart attack.)
Meanwhile, the man who caused all this, ex-appliance wholesaler and Ponzi-schemer Tom Petters from St. Cloud, MN, is now on trial in Minneapolis. That’s getting big-time coverage from multiple sources, including the New York Daily News. And, as Susan Carey reports in the October 28 Wall Street Journal, “Petters Isn’t Going Down Without a Fight.” Seems he was aided and abetted in the scam that has put the Polaroid Collection in jeopardy by one Larry Reynolds, a government informant now in the federal witness-security program. Which means the Feds oversaw the construction of the scheme for which Petters stands indicted. That’s become a key point in Petters’s defense.
All of it very juicy, and I look forward to the denouement, however it plays out. I’d find it more entertaining, and less depressing, if the blowback from this rip-off artist’s failed magnum opus didn’t imperil an invaluable photographic resource. That’s a very small part of the much larger story, but the one that comes closest to home, and thus the one about which I care the most.
So I continue to pursue that aspect of the tale. Along the way, I should add, I’ve received yet another version of the standard release form used by Polaroid in its acquisition of works for the collection. As do most other examples of this document that I’ve acquired, this one includes no language indicating transfer of ownership, sale, or other outright and complete relinquishment of all rights thereto by the photographer. Instead, it specifically indicates that “I _____ hereby grant Polaroid Corporation and its companies, the worldwide non-exclusive rights for exhibition, editorial, publicity, and non-commercial publication purposes—e.g. print, electronic, Internet, CD-ROM—of the following images in perpetuity. I represent that in each case the photograph is mine and is fully released.”
I find no way to interpret this as a bill of sale. According to this document, as with its predecessors, Polaroid acquired only “non-exclusive rights” for specified purposes. If those rights were non-exclusive, then someone else shared them, and likely had other rights to these works as well. Which makes them joint property, meaning they can’t be sold without the consent of the other party to those rights.
What’s notable about this iteration of the form is that it bears a March 2005 date, and came from the desk of Barbara Hitchcock, then director of the Polaroid Collections. That’s several years after the first Polaroid bankruptcy and reorganization of 2002, suggesting that even in its final years the collection adhered to the policy and practice of acquiring only limited usage rights to the works it now claims to own outright and wants to sell.
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