Legal dispute over ownership of Maier work

[Art Vandalay]

not sure if the correct forum, but an interesting read: http://www.nytimes.com/2014/09/06/arts/design/a-legal-battle-over-vivian-maiers-work.html?_r=0

 

[Lauffray]

Yep, it's been posted elsewhere, but I think it merits a separate discussion.

I don't know about you, but stories like this bring out the cynic in me.

Here you have Maloof and co, marketing and selling expensive prints that aren't his own. Granted, he found them and bought them, and I can't comment on the finances of the whole thing, maybe he's losing money who knows.
On the other hand, the timing of the other issue doesn't seem like a coincidence. The search for the heir and the legal dispute will effectively stop pretty much all of Maloof's efforts, and to what gain. The French cousin didn't even know Vivian according to that article.

I hope I'm wrong, but I think there will be a lot of people trying to cash in on this story while it's in the spotlight.

 

[graywolf]

One of the reasons I have always felt that copyrights, including my own, should only be good for the life of the creator. And, where does it stop, each and everyone of the people she photographed can sue because she did not have a model release from them. A legal nightmare, from the works someone that just took pictures as a hobby, not even thinking her work had any value.

In someways it was better when you actually had to register a copyright for it to be valid.

 

[Lauffray]

In someways it was better when you actually had to register a copyright for it to be valid.

Why is that ? I'm not sure I agree.
The very notion of copyright involves distribution rights and commerce, from the little we know about VM I think we can all agree that she never wanted the work to become public.

That's another thing I'm ambivalent about, does the promotion of the work somehow violate her lifelong wish for it to be private or is it ultimately better that we come to discover and (for those who do) appreciate the work ?

 

[Addy101]

I don't think mr. Deal wants to make sure the pictures of Vivian Maier stay out of the public...

 

[NY_Dan]

Ugh -- just Google the copyright law. When one registers a copyright it makes it much easier to defend and also provides for recovery of legal costs and extra punitive damages. You get more protection and benefits by copyrighting your work.

The prints are Maloof's "own." He paid for the prints. Of course there are interested parties who wish to make a case for him not having the reproduction rights to the negatives.

Nobody can state with authority what VM would or would not want. If it truly mattered to her she would have left a will. That's what people who care about the disposition of their belongings and legacy do.

The people in the photos would have a hard time suing -- they're out in public with no reasonable expectation of privacy. Now if their image was used to market a product like Coke, maybe then they would have a case. But remember these photos are 60 years old or so -- so lets get real.

The "search" for VM heirs has zero enforceability with regards to commerce. All the state (Chicago) can do is request various parties keep good records. They can call it a warning -- but that is verbiage.

Esq Deal -- he's a failed photographer 🙂 And if a lawyer tells you he's not in it for the money...

Feelings, ill-defined ideas of fairness, unsupported arguments, are valueless in the eyes of the law.

 

[Addy101]

The people in the photos would have a hard time suing -- they're out in public with no reasonable expectation of privacy. Now if their image was used to market a product like Coke, maybe then they would have a case. But remember these photos are 60 years old or so -- so lets get real.

This is American Law. In Europe (at least in The Netherlands and Germany) you've got something called Portretrecht in Dutch and Recht am eigenen Bild in German: the right to your own likeness. Using your picture in an advertisement without your consent will be most likely be a violation of that right.

 

[Lauffray]

The prints are Maloof's "own." He paid for the prints. Of course there are interested parties who wish to make a case for him not having the reproduction rights to the negatives.

No you're right, it was poor wording on my part. The prints (correction) and the negatives are his own, he bought them, it's only fair. But it isn't his photography. Legally it might not matter, but do you not see a problem here ?

Nobody can state with authority what VM would or would not want. If it truly mattered to her she would have left a will. That's what people who care about the disposition of their belongings and legacy do.

She was poor and nearly mad towards the end of her life. She didn't have any recognition for the work during her lifetime, so why would she choose to protect it beyond her death ? You're right, we can't know for sure, but her behaviour suggests something, it's not as if it's still uncertain whether or not she was private.

The "search" for VM heirs has zero enforceability with regards to commerce. All the state (Chicago) can do is request various parties keep good records. They can call it a warning -- but that is verbiage.

I don't know law, even less US law. The article does say that the work can't be shown while the dispute is ongoing, that doesn't affect commerce ? What if the heir decides he doesn't want any of the publicity and sales ?

Feelings, ill-defined ideas of fairness, unsupported arguments, are valueless in the eyes of the law.

Sure but this isn't a courtroom 🙂
I brought these ideas for discussion, I didn't say they were legally valid. So, in which way do you think my ideas of fairness are ill-defined ?

 

[Pioneer]

I raised this issue in another thread and made a similar error in assuming the work was "frozen."

After further consideration I suspect that this is an attempt to get some "settlement" cash. Additionally, the media is typically very poor at providing accurate reporting relative to legal actions, so I doubt that they have suddenly become a lot better it in this case. Finally, this is the type of thing that will muddle along for years until something comes of it. This benefits the lawyer as their billable time builds over this time period. When a settlement is reached, if it is, the attorney's bills will consume the bulk of the settlement.

I sincerely hope that cataloging and presenting her work is not materially disrupted and, I hope that I have forgotten all about this sad episode by the time I read about the resolution.

I don't know as much as I probably should about copyright law but I doubt that changing it will be appropriate. I am pretty sure there are times when we do not want the heirs to lose the rights to their relative's copyrights.

I think the answer is to do it this way. A lawyer gets to try this once. If it fails then he must work as a janitor for 5 years. He can go back to law after that but he must work for the district attorney or as a public defender for 10 years. Once he has done this he can practices as he pleases.

 

[NY_Dan]

Lauffray -- your ideas of fairness are based on emotion, which is subjective and as such is not quantitative, thus ill-defined.

"Legally it might not matter, but do you not see a problem here?" No. Would you want your legal rights at the mercy of those who think their beliefs are more moral than yours? Do you think any part of your life would be safe then? Do you want your local police to go by written laws or make up ones that make them feel good as they go along?

Read the following quote closely: "The legal case to determine whether Mr. Baille is Maier’s closest relative has now set in motion a process that Chicago officials say could take years and could result in Maier’s works’ being pulled from gallery inventories and museum shows until a determination is made."

The operative word is could. -- it could take years, it could result in x. In other words the work can be shown. The case could be thrown out of court. Maloof who has the finances to fight, and who has possession of the negs, is in the driver's seat. Here's what will happen -- Maloof will cut a deal with Deal -- a similar deal he already has with the other cousin once removed, and that will be that. (a deal I'm sure is too generous and only made for PR) This is why I get so frustrated reading threads like this -- people don't read! 🙂 And they don't research the law. VM's mental state may be what you state but it cannot be proven in a court of law. She signed a contract with the storage company. The storage company sold the lots to a wholesaler for $250 -- he divided it up into many lots and sold those sub lots at a modest profit. Maloof bought some of the lots, and he rescued some other stored items from the garbage -- literally. Say what you will about Maloof -- but he worked hard, developed the resource, and was in the end a very competent businessman -- if he had done as much selling hamburgers you would be singing his praises. Remember if not for Maloof's industry all VM's industry would have been for naught.

Lastly (Lord hear my prayer) 🙂 -- Esq Deal will not have the funds for depositions, experts, court costs, etc etc etc And if Deal remains the cousin once removed lawyer, he will be obligated to take any offer Maloof makes to his client -- whom I imagine is not that young -- he will want to see some cash while he can still spend it -- really based on FACTS, LAW, and even self-interest, is there a more likely outcome? I think not. If Maloof gets annoyed and stonewalls Deal and co -- it will be to their detriment, not his.

As for the state of Chicago -- it will garner taxes -- income and sales from Maloof's industry.

I give thanks to VM and Maloof for raising so much public interest and appreciation for photographers and photography. Many people who have formed a "bond" of sorts with VM will buy her work and eventually the work of others -- they will become collectors -- and this will be good for galleries -- which in turn will be good for photographers. It is beyond my capacity to understand why any photographer would not value this dynamic -- let alone think ill of it. Are we all communists? 🙂

Want to make a good investment? The current news will scare off some buyer's and perhaps temporarily depress the price of VM prints. Wait for a dip to $1,500 and buy what you can. Then when the fog lifts you will have a nice print or two, and in the event you need the money you will have an asset that has appreciated -- hopefully.


(I have to mention -- I'm in way over my head on all of this. I'm just having fun ranting. What do I know. Seriously I'm just a photographer.)

 

[Ljós]

In the VM-thread that was deleted and reopened there were some interesting statements made by one of the less mentioned of the the three (I think, all in all, three?) "owners" of the estate. He is registered here at RFF, but I can't remember his name or nick right now.
He sounded quite sensible, and his position was (as stated by him) that he had the entire time felt this was all on shaky ground, which was one of the reasons why he had not made any commercial gains from her work (no print sales etc.).

Would be interesting if he chimed in again.

 

[NY_Dan]

Ljos - that was Ron Slattery. I can't decipher his motivations or intentions -- and I don't think anyone else can without him stating why he bought the items in the first place. My guess is he's letting the others drive the value up.

For Scrambler below -- VM did write a letter to her printer in France regarding marketing her photos as postcards. Perhaps it was just a case of circumstance.

 

[Scrambler]

" if he had done as much selling hamburgers you would be singing his praises."

"Remember if not for Maloof's industry all VM's industry would have been for naught."

Dan - I highly value your photography and opinion.

I agree with "most all" you say however I disagree with these two points:

1) Photography is MUCH better for you than greasy hamburgers. Whatever the qualities of Mr Maloof are, I am glad he turned them toward imagery not fast food.

2) VM obviously didn't think that - or she would have sought publication in her lifetime. There was some other gain for her - and at this stage what that was would be pure speculation on our parts.

 

[Ljós]

Ljos - that was Ron Slattery. I can't decipher his motivations or intentions.

Ah, thanks! Exactly, that's who I meant. Can't say anything about his motivations and intentions either, but he contributed some interesting information about what pictures she had printed herself during her lifetime, the selections she made, notebooks etc.
I found it interesting because in the light of so much being said and speculated about her, it is good to know that there is more material to come further down the road which will present an insight into her view of things.

 

[Lauffray]

Lauffray -- your ideas of fairness are based on emotion, which is subjective and as such is not quantitative, thus ill-defined.

"Legally it might not matter, but do you not see a problem here?" No. Would you want your legal rights at the mercy of those who think their beliefs are more moral than yours? Do you think any part of your life would be safe then? Do you want your local police to go by written laws or make up ones that make them feel good as they go along?

Just because the laws are written doesn't make them fair. Copyright extension laws have been written, to whose benefit ?
I do find it odd that someone is (possibly) profiting off of another's work, after their death and when it's unclear what the original creator intended to do with them.
Of course, this is only my opinion and it doesn't change anything. Meantime in the real world, people are buying and selling Van Gogh and Picasso paintings.

Say what you will about Maloof -- but he worked hard, developed the resource, and was in the end a very competent businessman -- if he had done as much selling hamburgers you would be singing his praises. Remember if not for Maloof's industry all VM's industry would have been for naught.

I'm not trying to paint Maloof as the bad guy, to me it's a grey area. I have your last point in mind as well, and it's part of the reason I'm ambivalent, because I do like her work and I'm grateful he did find those negatives.
This very well might clear in court (you seem to know the law better than I do) but what do *you* think about it ?

 

[rolfe]

We should be sophisticated consumers of photographic images here. There is a continuing misunderstanding of "commercial usage" as it understood under US law. If you us an image in an advertising campaign, that is commercial usage. If you exhibit an image in a gallery or publish a book, that is an artistic usage, and not commercial usage. It has nothing to so with whether money is made in the latter case.

In the VM case, I don't think the cousin has much to stand on, but I would not be surprised to see some modest settlement to put the matter to rest. The reason is that VM left no will, no desire as to how she wanted her negatives treated. In fact, she essentially discarded them. The current owner of the negatives certainly has the right to make prints. The question is, does he have the right to sell the prints, books, etc.

My guess, in the absence of any directive to the contrary by VM and no direct heirs, he will prevail.

 

[mdg137]

One of the reasons I have always felt that copyrights, including my own, should only be good for the life of the creator. And, where does it stop, each and everyone of the people she photographed can sue because she did not have a model release from them. A legal nightmare, from the works someone that just took pictures as a hobby, not even thinking her work had any value.

In someways it was better when you actually had to register a copyright for it to be valid.

1. There is a limit, life plus 70 years currently.

2. It is not even remotely true that each subject could sue. Individuals in public can be photographed without a release. Commercial use of the images is where you run into trouble-- not sale, but use in advertising, etc.

3. You NEVER had to register a copyright for it to be valid. It's your copyright the instant the image is "reduced to a tangible medium"-- registration provides more protection, more penalties for someone who infringes.

As a photographer and an intellectual property attorney, it distresses me how misinformed most of us photographers are with regards to the law.

 

[Lauffray]

3. You NEVER had to register a copyright for it to be valid. It's your copyright the instant the image is "reduced to a tangible medium"-- registration provides more protection, more penalties for someone who infringes.

Let's say I have 200 rolls of film I want to register for copyright, do I submit one for the whole ? and then another a few months from now after I shoot another 50 rolls ?

 

[mdg137]

Let's say I have 200 rolls of film I want to register for copyright, do I submit one for the whole ? and then another a few months from now after I shoot another 50 rolls ?

Not sure I understand the question-- the way copyright in the US works, as soon as your idea is fixed in a medium-- the second you trip the shutter, the moment you transpose dance into written notation, the moment lyrics are written, etc. , copyright to the author is established.

To register with the copyright office, the work must be submitted to gain the added protection. Without registration, an infringer is essentially on the hook for lost profits to the author. With registration, there are statutory penalties added on.

For unpublished photos, you can register them individually or as a "collection", which carries with it a few minor requirements.

 

[Roger Hicks]

1. There is a limit, life plus 70 years currently.

2. It is not even remotely true that each subject could sue. Individuals in public can be photographed without a release. Commercial use of the images is where you run into trouble-- not sale, but use in advertising, etc.

3. You NEVER had to register a copyright for it to be valid. It's your copyright the instant the image is "reduced to a tangible medium"-- registration provides more protection, more penalties for someone who infringes.

As a photographer and an intellectual property attorney, it distresses me how misinformed most of us photographers are with regards to the law.

Thanks for a beautifully succinct summary.

Have you any comment on Rolfe's assertion that a book is not commercial use? Especially if it's not your book, and you sell someone the image for use in it? Or a magazine? There's a French case about 10 years ago concerning metro (subway) riders where art and freedom of the press trumped a right to privacy (yes, I know, the French are rather different on this) but I wondered if you would be kind enough to cite any US cases on selling pics to others for use in books. As far as I recall, under English law, people in pictures can sue if they are held up to ridicule or contempt, or if the picture is defamatory (e.g. a picture captioned "A prostitute in Broad Street" when she isn't, or maybe even if she is).

Alas, I cannot find the French reference; I have no easy access to a UK law library (I am in France); and I will fully understand if digging out American citations is more trouble than you wish to go to.

Cheers,

Roger