Always very interesting, and worth the wait.

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.

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

But that doesn’t mean the content at those sites has been aggregated legally. Prior to the advent of the web in the mid-’90s, few publishers asked for writers to license or transfer electronic rights to them; they contracted for print rights only. When the web emerged, publishers often assumed that they enjoyed digital rights to what they’d published in print. In its notable decision on the landmark Tasini et al v. The New York Times case, the U.S. Supreme Court set them straight.

Despite that ruling, many content aggregators continue to publish copyright-protected material licensed illegally to them by assorted publishers. I police this to the best of my ability, but I know that some slip through the net I cast.