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Polaroid Collection: Update 26

A. D. Coleman, 2010. Photograph copyright by Willie Chu.Per my previous post, Minnesota Bankruptcy Court Trustee John R. Stoebner has entrusted the last remnants of the former Polaroid Collection to Swann Auction Galleries in Manhattan for final disposition, either by auction or private sale. Swann, in turn, has allocated the first batch therefrom to its imminently upcoming April 4, 2012 afternoon sale, the catalogue for which you’ll find online here.

Daile Kaplan, director of Swann’s Dept. of Photographs, informs me that they don’t plan any auctions devoted exclusively or even primarily to the Polaroid Collection leftovers. Instead, they intend to apportion them among this and several future auctions.

Swann Auction Galleries logoThe court orders delegating these concluding sales to Swann authorize that house to sell them at “one or more auctions it plans to conduct during the next one year.” They can also sell the items piecemeal, to private buyers, during this consignment period. As those court orders are dated February 6, 2012, and mention the April 2012 auction as a kick-off point, it seems reasonable to assume that the Trustee and Swann will conclude their collaboration with Swann’s April 2013 photo auction.

It’s unclear what would happen to any material from the Polaroid Collection that remains unsold at that point. Two auction houses — first Sotheby’s, and then Swann — would by then have determined that the remainder was unsuited for the secondary market, or (in the case of any items bought in) the market would have actually rejected the offerings. Conceivably the leftovers would then get sold privately, in one or more batches, to the highest bidders. The trustee will by then have milked the collection for its financial maximum return to the creditors, and will want to wrap this up.

Swann Auction, 4/4/12, catalog

Swann Auction, 4/4/12, catalog

The April 4 sale at Swann doesn’t bear the Polaroid Collection name; it’s titled generically, “19th & 20th Century Photographs & Photobooks.” It includes only the following items from the Polaroid Collection:

  • Ansel Adams, 5 gelatin-silver exhibition prints (lots 343-346, 348);
  • Ansel Adams, 11 SX-70s, 1 gelatin-silver mural print, 3 gelatin-silver exhibition prints (lots 416-420);
  • Andy Warhol: “Martha Graham” (lot 450);
  • Carrie Mae Weems, diptych and triptych (lot 453);
  • Laurie Simmons, “Tree with Clothes Ornaments” (lot 454).

These two dozen works represent a very small selection from the almost 700 items consigned to Swann. Keep in mind that while a few of these items were withdrawn from the Sotheby’s auction due to protest by the artists, Sotheby’s skimmed the cream off the collection for those sales. What’s left, then, are either the few globules of fat left floating on the surface or else the best of the skimmed milk that remains — from the perspective of the secondary market, that is. (I’d consider all of this group of works historically significant and museum-worthy, though some of it primarily as study material.)

Swann’s high-end estimates on these lots total $124K; in a few weeks we’ll know whether that’s a realistic assessment in the current economy.

U.S. Bankrupcy Court Minnesota sealAll of this has the melancholic inevitability of the done deal, explicated in the court order designating Swann for this role in the drabbest of legalese. With just one exception. The order from the Minneapolis Bankruptcy Court authorizing these sales at Swann contains, toward its beginning, one curious passage in a section titled “Background.” It reads, in its entirety, as follows:

7. The [Polaroid] Photography Collection contains items that were acquired by Polaroid Corporation over the course of many years (indeed decades) in exchange for substantial consideration. Officially founded in the late sixties, the Photography Collection encouraged and assisted photographers in the medium of Polaroid instant photography by giving such photographers film, cameras, studio time and even cash payments and, in return, acquired a diversified collection of original instant film images from virtually every photographic genre. Additionally, the photographers whose works were selected and included in the Collection received publicity associated with the display or exhibition of the work.

Now, no such passage appears in any previous court orders authorizing the sale of portions of the Polaroid Collection. And no such truncated synopsis of the collection’s construction is legally required to validate the current court order in which this appears. Even I, instrumental though I was in instigating a last-ditch struggle to preserve the collection intact, acknowledge that at this point — after passing through two bankruptcies, a Sotheby’s auction, two bulk sales of the lion’s share of the remainder, and a publicizing of the situation that enabled any of the photographers to lodge a protest — these last shards of the collection now stand “free and clear of all liens, claims, encumbrances and interests,” and the Trustee has the right to market them without any interference from any party.

Drafted by Trustee John R. Stoebner, this paragraph seems intended solely to assuage someone’s conscience, by arguing that the “substantial consideration” the photographers received — “film, cameras, studio time and even cash payments” (not to mention publicity) — somehow compensates them for the breach of contract that occurred during the first Polaroid Corporation bankruptcy in Delaware in 2002, and justifies the fact that a contractual agreement that gave them perpetual access to their works for exhibition and publication purposes got ruptured unilaterally and irrevocably. I disagree — as does retired Federal Judge Magistrate Sam Joyner. The fact that the shafting of the photographers in the collection can’t get undone doesn’t mean that it never happened.

Laurie Simmons, “Tree with clothes ornaments (from The Education Project,” diptych, 1992

Question is, whose conscience is troubled here, enough so to warrant the drafting of this gratuitous passage in the court order? Sotheby’s and Stoebner went to a lot of trouble to try to intimidate me and end my postings about all that prior to the June 2010 auction, threatening me with a 6-figure lawsuit and all, claiming that prospective buyers were developing qualms resulting from the documentation of the photographers’ contractual agreements with the original Polaroid Collection that I’d gathered and posted and commented upon. But those reservations had to do with the legality of the sale, not the ethicality thereof. The issue of the photographers’ moral rights clearly didn’t affect bidders at the 2010 auction, and I can’t imagine it will affect bidders at this one or its successors at Swann over the next twelve months. Nor do I think they should. That fight has long since concluded; whatever rights the photographers once had have become permanently voided, and the best outcome now has these vestiges of a once-great collection finding safe homes.

John R. Stoebner, Esq.

John R. Stoebner, Esq.

Besides, who — aside from the rare obsessive like yours truly — will actually read this court order? Not the bidders and buyers at Swann next month or the coming year, that’s for sure. The art press and the photo press, neither of which found this story of more than passing interest, moved on from it as soon as the totals from the June 2010 Sotheby’s sales got released. They’ll pay this denouement no attention at all, predictably. Minnesota Bankruptcy Court Judge Gregory Kishel, who signed off on it (perfunctorily, one can be sure), and who never believed the photographers had any standing in this case, presumably eyeballed it. His court clerk, too, and Stoebner’s secretary, skimming it purely for spelling and syntax. None of them need any further rationale for the decisions already made. So for whom was that peculiar, anomalous paragraph written?

I have to conclude that John R. Stoebner, as Trustee appointed by the Minnesota Bankruptcy Court, wrote it for John Stoebner, to convince himself that neither he nor the court had perpetuated any injustice in this situation, and that the photographers who’d exchanged their work for materials on the stated understanding that they’d have ongoing rights to the work weren’t injured when those rights got stripped from them. As James Taylor puts it, you can believe it if it helps you to sleep.

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

This post supported by a donation from photographer Philip Trager.

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3 comments to Polaroid Collection: Update 26

  • Thanks for posting this.

    The New York intellectual property attorney Ed Greenberg characterizes photographers as often afraid to enforce their contractual rights. Greenberg elaborated in 2003 at a panel discussion titled “The War Against Photographers.”

    The transcript is at http://www.editorialphoto.com/outreachep/wap.pdf

    • A. D. Coleman

      I recommend this transcription to PI’s readers — a good dialogue.

      However, I don’t think that only photographers face this problem. There’s a war on against all makers of IP, and it especially affects independent/freelance content producers, who don’t have lawyers on call to handle such matters. The fight to protect one’s copyrighted material takes time and energy and sometimes money. You face an enemy that includes not only major corporations but everyone under 35 who grew up feeling entitled to getting all content “free.” You can find yourself embroiled not only in countersuits but the kind of zombie flashmobbing to which a horde of webweasels subjected Jay Maisel last year.

      With that said, I don’t think this Polaroid Collection situation resulted from timidity on the parts of photographers. Per my chronicle of the collapse of the Polaroid Corporation, and the consequent fate of its collection, the real damage got done during the original bankruptcy proceedings in 2002. The photographers should have received official notice then that their rights to their works were in jeopardy; that’s the moment at which they had standing in this matter. And the network of professionals in the field — curators, critics, historians — should have mobilized then to preserve the collection. Instead, they all accepted the false assurances of those in control of the collection that it would remain intact and the photographers’ rights in perpetuity would stand. The more fool us for believing that claptrap; we all heard what we wanted to hear, myself included. Mea culpa.

      Moreover, this situation doesn’t exactly compare to the standard rights grab or copyright infringement that are the main subjects of the panel to which you link. The rights lost by the photographers with work in the Polaroid Collection haven’t gotten transferred to anyone else for exploitation; they’ve just evaporated. Indeed, the whole issue of IP and usage rights is ancillary to the bankruptcies and dispersal of the collection; the Minneapolis Bankruptcy Court has actually confirmed explicitly that the sell-off of the works does not carry with it any transfer of copyright or subsidiary rights.

      The lesson here: It behooves all of us in the field to keep an eye on any notable collection of photographic materials that gets into financial hot water, and to act expeditiously and concertedly to ensure the survival, intact, of such repositories. We now have a perfect example of what happens when we fail to do so.

  • Thanks again for these updates. My works were on show in 2-3 Polaroid Collections shows, 2 in NYC and one in Switzerland…..perhaps because it was a Polaroid transfer on an etching…a slightly different combo….all seven prints were acquired through the open annual “portfolio” competition….I doubt anyone will think them significant at this point, but the curator certainly had a soft spot for a pic of a Roman marble male torso….

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