Legal dispute over ownership of Maier work

[ian_watts]

Thanks for a beautifully succinct summary.

Have you any comment on Rolfe's assertion that a book is not commercial use?

Nussenzweig v. DiCorcia is relevant but by no means definitive because the judge's decision to find in favour of DiCorcia didn't hang on the question of what constitutes commercial usage (the complainant argued that his privacy rights under a New York statute that a person's likeness couldn't be used without permission for advertising or trade had been violated).

 

[tunalegs]

Ultimately, it boils down a to a rich guy getting a little richer off of the works of a poor dead woman.

Maybe that effort is admirable to some. But it does seem a little odd to myself.

 

[MrFujicaman]

The lawyer sounds like the lawyers who run ads on daytime TV and late night TV about the lung cancer caused by asbestos. They are looking for a big fat settlement-of which they get 40% or more. I really doubt this lawyer is doing this out of the goodness of his heart.

And a cousin once removed that never even knew or met her ? Give me a break. Hell, I have a cousin I've seen twice in my life-the last time being 1976 ! Should he be entitled to some of my estate if I die ?

The lawyer's game plan is simple...he wants to force Maloof to settle. And Malloof's lawyer's would most likely recommend that he settle out of court.

 

[Roger Hicks]

Nussenzweig v. DiCorcia is relevant but by no means definitive because the judge's decision to find in favour of DiCorcia didn't hang on the question of what constitutes commercial usage (the complainant argued that his privacy rights under a New York statute that a person's likeness couldn't be used without permission for advertising or trade had been violated).

Dear Ian,

Thanks very much. I shall seek it out forthwith.

Cheers,

R.

 

[Andy Kibber]

Nussenzweig v. DiCorcia is relevant but by no means definitive because the judge's decision to find in favour of DiCorcia didn't hang on the question of what constitutes commercial usage (the complainant argued that his privacy rights under a New York statute that a person's likeness couldn't be used without permission for advertising or trade had been violated).

I was going to mention the DiCorcia case. The photographs at issue in that case were offered for sale at $20,000+. I like the judge's comment that first amendment protection of art is not limited to only starving artists.

 

[jsrockit]

Ultimately, it boils down a to a rich guy getting a little richer off of the works of a poor dead woman.

Who's the rich guy?

Maybe that effort is admirable to some. But it does seem a little odd to myself.

Well, if you are fan of photography, you like to see good work. Sometimes, good work is put out into the public in less than desirable ways.

 

[Paul T.]

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.

Huh?

Owning negatives has absolutely nothing to do with owning the copyright.

You could argue that possession is nine tenths of the law, but if you're selling copies of prints or negatives then you're doing it in the hope that the copyright holder won't come after you.

This is a live issue, as Getty and others are trying to limit their exposure when they sell images that don't belong to them. But the copyright stands with the photographer, not the owner of the print or neg.

 

[graywolf]

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.

I posted my opinions, not "LAW".

However, I will argue law on your point 3. At one time if you published a photo or book or whatever with out registration and the copyright notice, you wound up placing that work into the public domain.

Copyright laws have been changed many times in my lifetime (70 years). Back in the 1960's`1970's I was fairly knowledgable about them, these days I haven't much of a clue. I have noticed. however, that nothing seems to prevent folks from placing copyright notices on works that are clearly in the public domain.

 

[mdg137]

Huh?

Owning negatives has absolutely nothing to do with owning the copyright.

You could argue that possession is nine tenths of the law, but if you're selling copies of prints or negatives then you're doing it in the hope that the copyright holder won't come after you.

This is a live issue, as Getty and others are trying to limit their exposure when they sell images that don't belong to them. But the copyright stands with the photographer, not the owner of the print or neg.

Absolutely-- the copyright stands with the author of the work, or the holder, if the original author has assigned the rights.

You can OWN the original of any work, and sell it. It's the reproduction, distribution, or in some cases public display (like motion pictures) that violates the copyright.

It is, at its core, the right to copy-- to create copies or derivative works.

Maloof and the others are not the copyright holders, unless they have acquired the rights from Maier's heirs.

 

[Mark C]

I'm glad the work was published and think it has been a major contribution, establishment shaker, and positive attention getter.

Still, I have to agree with the above post, and am surprised this issue didn't come up sooner. I hope something is worked out.

 

[tunalegs]

Well, if you are fan of photography, you like to see good work. Sometimes, good work is put out into the public in less than desirable ways.

I do like to see good work. But only if the artist who made it wants me to see it. :angel:

There are plenty of excellent photographers out there, who are currently producing work, or at least currently living and worthy of commendation or monetary support.

It's really rather perverse to be paying a guy money for exploiting work he didn't make, when there are plenty of creators who could benefit from such attention while they're still alive. That's not even bringing into the equation who has the copyright, or whether or not V.M. even would be ok with people seeing the photos that she kept private while she was alive.

Some of her photos are great, sure, but the rest of the business around them smells pretty bad at this point.

 

[Roger Hicks]

I posted my opinions, not "LAW".

However, I will argue law on your point 3. At one time if you published a photo or book or whatever with out registration and the copyright notice, you wound up placing that work into the public domain.

Copyright laws have been changed many times in my lifetime (70 years). Back in the 1960's`1970's I was fairly knowledgable about them, these days I haven't much of a clue. I have noticed. however, that nothing seems to prevent folks from placing copyright notices on works that are clearly in the public domain.

Possibly, prior to the Buenos Aires Convention in 1910 -- but before that there was the Berne Convention of 1886 which has been the law in the United States (a late adopter) since 1989. Either way, even in the 60s, my understanding is that there was no need for registration in the USA, though registration did (and does) give additional remedies against copyright infringement.

US publishers were notorious for ripping off foreign copyrights in the 19th century -- Dickens was quite acerbic about it -- and respect for intellectual property is (or should be) more important than ever today.

Cheers,

R.

 

[tunalegs]

Possibly, prior to the Buenos Aires Convention in 1910 -- but before that there was the Berne Convention of 1886 which has been the law in the United States (a late adopter) since 1989. Either way, even in the 60s, my understanding is that there was no need for registration in the USA, though registration did (and does) give additional remedies against copyright infringement.

US publishers were notorious for ripping off foreign copyrights in the 19th century -- Dickens was quite acerbic about it -- and respect for intellectual property is (or should be) more important than ever today.

Cheers,

R.

In the U.S. work was only protected from the time it was published, not created. Which lead to all sorts of problems in enforcing copyrights internationally. It's why Gilbert and Sullivan had to arrange to debut Pirates of Penzance in New York instead of England - to secure copyright in the U.S. before the work could be "pirated" by imitators.

For full information about U.S. copyright terms, here's some official documentation: http://www.copyright.gov/circs/circ15a.pdf

When V.M. took many of her photos, they would have needed to have been registered to be protected. But so far as I know (and I may be wrong) none of her photos were ever published anywhere during that era. The changes in U.S. copyright law in the 1970s offered some retroactive protection to unregistered works. And the current law is all works are protected from the date of their creation, up until 70 years after the author's death.

But works which were published but not registered in the era when registration was necessary can fall into the public domain, as is the case of movies like the original Night of the Living Dead or the American release of Atoll K.

 

[Texsport]

Ultimately, it boils down a to a rich guy getting a little richer off of the works of a poor dead woman.

Maybe that effort is admirable to some. But it does seem a little odd to myself.

The "poor dead woman" had no desire to market her works. Others find that her work has merit and value it.

Because others value her images, they are willing to pay for private copies to keep and admire.

Texsport

PS- as for the work being frozen, I just received my DVD copy of Maloof's movie, in payment, as agreed, for supporting the restoration of the work through Kickstarter. I anxiously anticipate my first viewing.

 

[Lauffray]

Because others value her images, they are willing to pay for private copies to keep and admire.

So I can choose not to pay to see her work if I don't agree with it, correct ? That doesn't answer the question though. Maloof bought the stock and is selling it in all legality, but does it sit right with you that he's doing well off of a work that isn't his ?

 

[tunalegs]

My initial comment was sarcastic, but it's also still basically true. One can say what they want about "free enterprise" but the truth is Vivian died poor, did not sell her negatives (even if she forfeited ownership of them involuntarily) and definitely did not sell or transfer any copyrights to those who collected her negatives and are now selling prints made from them. So who owns the copyright, if there even is any valid claim to one? Well that's the issue.

 

[Frontman]

It sounds like Mr Deal is the real "heir apparent" in this situation. After he collects his fees (which will include a lot of airfare to France) his client may not receive very much. Mr Maloof's lawyer/s will of course charge quite a lot in the way of fees as well.

Funny, but in the end Maier's work may be liquidated, with the greater part going to the lawyers on both sides.

 

[Paddy C]

From the start this has been a fascinating story and I think full of lots of important lessons and opportunities to learn – you don't come across this often.

Some thoughts:
Copyright has become ridiculous. The length of protection is insane, is no longer in the spirit of what was originally intended by the founding fathers of the US. Only in the US could Walt Disney build an empire on public domain and then spend the following decades lobbying to prevent others from doing the same.

But that's the way it is and has little bearing on the VM case as she is recently deceased. Unless, of course, you believe copyright should end with the creator's death.

Like patent trolls, Mr. Deal (the name is still unbelievable to me) is a tiresome residue of the system. Someone who produces nothing but profits from the work of others at the expense of many.

 

[Roger Hicks]

From the start this has been a fascinating story and I think full of lots of important lessons and opportunities to learn – you don't come across this often.

Some thoughts:
Copyright has become ridiculous. The length of protection is insane, is no longer in the spirit of what was originally intended by the founding fathers of the US. Only in the US could Walt Disney build an empire on public domain and then spend the following decades lobbying to prevent others from doing the same.

But that's the way it is and has little bearing on the VM case as she is recently deceased. Unless, of course, you believe copyright should end with the creator's death.

Like patent trolls, Mr. Deal (the name is still unbelievable to me) is a tiresome residue of the system. Someone who produces nothing but profits from the work of others at the expense of many.

With all due respect, who gives a *** about "what was originally intended by the founding fathers of the US?

Copyright law has moved on since then, and is the (sometimes shaky) consensus of signatories to international conventions -- not (North American) state-by-state interpretations of vague declarations of intent. The first copyright law (as far as I am aware) was in 1710 -- http://www.copyrighthistory.com/anne.html

Cheers,

R.

 

[Roger Hicks]

So I can choose not to pay to see her work if I don't agree with it, correct ? That doesn't answer the question though. Maloof bought the stock and is selling it in all legality, but does it sit right with you that he's doing well off of a work that isn't his ?

That's what the dispute is about: whether he is in fact acting legally or not.

Cheers,

R.