Legal dispute over ownership of Maier work

[Sparrow]

... I agree more or less, but I'd bet that clause was there ... my T and C always stated we retained those rights (described as temporal rights iirc) on the invoice, and I expect my customers claimed them on their purchase orders

Er ... equity yes, then there's quantum to consider eh?

 

[tunalegs]

... I feel confident that a contract lawyer's opinion would depend on the Terms and Conditions of the contract between the storage company and Ms Maier, and I bet that those T and C would almost certainly include intellectual rights in case of a breach of contract (none payment).

So Mr Deal will be challenging ownership under the US equivalent to Britain's Unfair Terms in Consumer Contracts Regulations

Unfair Terms in Consumer Contracts Regulations is a £200 an hour sandpit for lawyers to play in

If that were the case - to even the most remote degree - then Maloof wouldn't have spent any time looking for Vivian or a living relative. Because he'd have obtained the copyright from the storage facility when he bought her lot of items.

I also can't say I've ever paid for storage that included an agreement of forking over intellectual property in lieu of payment.

 

[Sparrow]

If that were the case - to even the most remote degree - then Maloof wouldn't have spent any time looking for Vivian or a living relative. Because he'd have obtained the copyright from the storage facility when he bought her lot of items.

I also can't say I've ever paid for storage that included an agreement of forking over intellectual property in lieu of payment.

... I yes I expect you're right

 

[Ronald M]

Just wanted to add, when a storage space is rented an agreement is made such that if rent is not paid, the item become property of the storage owner. They are then free to sell them.

Sad that VM had no idea of their worth and took no better care of them.

Not a nuanced legal opinion, but my vote is for the man who bought them.

 

[Roger Hicks]

Just wanted to add, when a storage space is rented an agreement is made such that if rent is not paid, the item become property of the storage owner. They are then free to sell them.

Sad that VM had no idea of their worth and took no better care of them.

Not a nuanced legal opinion, but my vote is for the man who bought them.

Dear Ronald,

As others have pointed out, repeatedly, physical possession of an item is NOT, repeat NOT, the right to make copies of it. The clue lies in the word, which is made up of "copy" and "right". Even the buyer knew that, hence his (possibly unsuccessful) attempt to buy the copyright.

Why are so many people missing this unbelievably simple point? Maloof is free to sell any of the negatives or prints that he bought. He is NOT free to make copies unless he owns the copyright. This is what is disputed.

See also Post 61 (among many others).

Cheers,

R.

 

[Paul T.]

O
Opinion #5: I believe that to question whether I believe that John Maloof has a "moral" right to profit from Ms. Maier's work is a true example of trolling in its own right. He has every right to profit from his investment, morally or otherwise.

He has a right to sell on the negatives, and make a profit. That's capitalism, and that's fair enough.

As far as selling copies of the photos, that's gangster capitalism - which some people these days mistake for capitalism, sadly.

I'm surprised and saddened by some of the ignorance in display here, that people who love photography are so ignorant of copyright. The subject is an intriguing one, as anyone interested will know there's a lot of movement on the subject of orphan works. There are large corporations who have bought archives of prints, like Maier's, and want to sell on usage. THey are pushing for legislation to limit their exposure in case the actual rights-holder turns up. I don't know the details of, for instance, the current UK bill, but some have inferred it's an attempt to limit exposure for these larger companies (like Google or Getty) and that photographers will end up being ripped-off.

Physical ownership of the negatives might give him some options.

He may be able to copyright the images by rephotographing them, but...

I think that story/debate is about derivative works, or "appropriating', which does happen and sometimes is a valid artistic technique. But that generally refers to putting an old work in a new context. Simply rephotographing photos doesn't constitute that.

Owning negatives or prints is essentially exactly the same as owning a tape of a band. It has value - but yu can't release it as a record.

 

[NY_Dan]

9/13/2014 Lafayette near E. Houston, NYC.

These guys don't know anything about VM, Deal Esq., and the copyright issue -- when I asked them to weigh in they said: huh?

 

[mdg137]

Dear Ronald,

As others have pointed out, repeatedly, physical possession of an item is NOT, repeat NOT, the right to make copies of it. The clue lies in the word, which is made up of "copy" and "right". Even the buyer knew that, hence his (possibly unsuccessful) attempt to buy the copyright.

Why are so many people missing this unbelievably simple point? Maloof is free to sell any of the negatives or prints that he bought. He is NOT free to make copies unless he owns the copyright. This is what is disputed.

See also Post 61 (among many others).

Cheers,

R.

Roger,

I cannot agree more-- this is a very simple distinction-- I fail to see why this is so elusive.

I don't think anyone here believes owning a DVD or blu ray of a movie, or recording of a piece of music entitles them to sell copies, why is this so tough to grasp?

 

[sig]

I am a bit suprised, normally most people here are very vocal about breaches of copyright, but somehow it seems like it is ok in the vm case.

Is it is because a bit of copyright violation is better than no vm photos for us to view? If the photo is good enough it would be a bigger sin not to make it available (for a small fee) to the public?

 

[NY_Dan]

I am a bit suprised, normally most people here are very vocal about breaches of copyright, but somehow it seems like it is ok in the vm case.

Is it is because a bit of copyright violation is better than no vm photos for us to view? If the photo is good enough it would be a bigger sin not to make it available (for a small fee) to the public?

There is no violation without a proven claim. The copyright office has not been notified of any violations, and there are no pending cases in court. All there has been is Esq Deal making threats, and a request (called a warning) for businesses to keep records of transactions connected to VM stuff. Why not wait till Deal accepts a deal -- that is if the pedigree of his client is greater than that of the relation Maloof come to an agreement with. VM can't benefit, Maybe one or more of her distant relations whom she had no relationship with may benefit -- and Deal will benefit. And the people who appreciate VM's work will continue to benefit, and those businesses (galleries and such) that serve the photo community will benefit too. ACRIMONY.

 

[sig]

Still, most times the folks here at rff go bananas over copyright issues, even if it is not a breach. So just suprised (and not trying to claim I understand copyright)

 

[semilog]

It's easy to be wise after the event, but if he'd set up a charitable VM Foundation, with himself as chief trustee and (well remunerated) director, and a reasonable wedge of the money going into (say) an annual prize for street photography, or some sort of not-for-profit publishing, it's unlikely there'd have been much trouble. In fact he'd probably have been hailed as a hero.

It was an absolutely obvious thing to to all along. With any foresight at all, this is what Maloof would have done.

 

[Timmyjoe]

Maloof has always creeped me out, and the thought of some opportunist buying the contents of a storage locker, and thereby getting their hands on someone's creative work (even though that someone is now dead), and profiting from that person's creative work, has always sat badly with me.

The case is far too complicated for me to say what should be happening to Maier's work, but how Maloof was handling it seemed to not be the way.

Best,
-Tim

 

[Pioneer]

Chuckle, chuckle, chuckle. 😀

So much for being allowed an opinion. 🙂

Ah well. I have absolutely no problem understanding what a copyright is. What I fail to understand it why everyone here feels Mr. Maloof does not currently own the copyright? It would appear to me that there are currently only two people who have made any attempt to secure a copyright, Maloof and Deal.

Maloof so that he would be able to copy and sell prints, books, movies, etc.

Deal, now that Maloof has been successful at selling prints, books, movies, etc., would like to break that copyright with one of his own.

But, at this point in time, the only person who appears to have any claim at a copyright at all is Mr. Maloof.

As Mr. Hicks was so nice to point out, Mr. Maloof may have been able to forestall all this by establishing a trust in Ms Maier's name, and selling the prints under that trust...or perhaps not.

So, it remains my opinion that the only person who has consistently maintained the legal high road in this situation is John Maloof. He legally purchased the negatives and other materials. Once he realized the potential value of that material he sought out the person who was considered the legal heir to that material and purchased the copy rights.

So I am not advocating "gangster capitalism." Nor do I consider John Maloof to be a totally wondrous person. What I do know is that up to this point he has been doing the work and taking, what appears, to be the correct steps to realize the potential of his investment.

Now, since I, and a few others here, are so terribly wrong, please tell me who you think deserves to own the copyright to this material??

 

[Pioneer]

No one deserves it. But who gets it, no telling at this point.

What?

(Eyes wide open and mouth wide in mock amazement!) 😱

No opinion??

🙄

 

[tunalegs]

There is no violation without a proven claim.

Just like it's ok to break the law as long as there are no police around. :angel:

Ah well. I have absolutely no problem understanding what a copyright is. What I fail to understand it why everyone here feels Mr. Maloof does not currently own the copyright?

Because he never acquired the copyrights for the images.

But, at this point in time, the only person who appears to have any claim at a copyright at all is Mr. Maloof.

That all depends on whether or not the relative he dealt with had a valid claim in the first place. Trying is good and all, but if you try and fail - you still fail. So right now somebody believes they have found a closer relative who may have a valid claim. Maybe they don't, maybe they do. If they do though, then they're going to have to be the one who decides whether or not to enforce the copyright, or sell it off, or settle, or give it up, whatever it is they want to do with it.

 

[mdg137]

A lot of members, who I like, seem to believe the copyright law is "fair" and I just hate to argue with them. 🙂

For me at least, it isn't a question of whether the copyright act is fair-- the law is what the law is.

It appears to me as though many are taking positions based on their perception of what is "fair"-- not the reality of the law governing the issue at hand.

Whether Maloof should have a claim morally, is a non issue in the face of the law.

I rarely register my work. When it is infringed, which is with an alarming degree of regularity ( I shoot a lot of nudes, that people take and post on tumblr mostly) I end up having to submit copyright complaints to tumblr, or cease and desist threats--

When I shot film mainly, I would occasionally purge some archives and sell the negs and transparencies-- accompanied by a receipt of purchase that included an explanation of the copyright act provisions.

Perhaps a thread proposing modifications to the DMCA, the Berne Convention, and the Copyright Act might be entertaining and worthwhile.

 

[Scrambler]

For me at least, it isn't a question of whether the copyright act is fair-- the law is what the law is.

It appears to me as though many are taking positions based on their perception of what is "fair"-- not the reality of the law governing the issue at hand.

Whether Maloof should have a claim morally, is a non issue in the face of the law.

I rarely register my work. When it is infringed, which is with an alarming degree of regularity ( I shoot a lot of nudes, that people take and post on tumblr mostly) I end up having to submit copyright complaints to tumblr, or cease and desist threats--

When I shot film mainly, I would occasionally purge some archives and sell the negs and transparencies-- accompanied by a receipt of purchase that included an explanation of the copyright act provisions.

Perhaps a thread proposing modifications to the DMCA, the Berne Convention, and the Copyright Act might be entertaining and worthwhile.

My thoughts exactly - except I don't get photos stolen, or shoot nudes.

mdg137 - 10th post in almost ten years! You post like it's large format ;-)

 

[Roger Hicks]

Chuckle, chuckle, chuckle. 😀

So much for being allowed an opinion. 🙂

Ah well. I have absolutely no problem understanding what a copyright is. What I fail to understand it why everyone here feels Mr. Maloof does not currently own the copyright? It would appear to me that there are currently only two people who have made any attempt to secure a copyright, Maloof and Deal.

Maloof so that he would be able to copy and sell prints, books, movies, etc.

Deal, now that Maloof has been successful at selling prints, books, movies, etc., would like to break that copyright with one of his own.

But, at this point in time, the only person who appears to have any claim at a copyright at all is Mr. Maloof.

As Mr. Hicks was so nice to point out, Mr. Maloof may have been able to forestall all this by establishing a trust in Ms Maier's name, and selling the prints under that trust...or perhaps not.

So, it remains my opinion that the only person who has consistently maintained the legal high road in this situation is John Maloof. He legally purchased the negatives and other materials. Once he realized the potential value of that material he sought out the person who was considered the legal heir to that material and purchased the copy rights.

So I am not advocating "gangster capitalism." Nor do I consider John Maloof to be a totally wondrous person. What I do know is that up to this point he has been doing the work and taking, what appears, to be the correct steps to realize the potential of his investment.

Now, since I, and a few others here, are so terribly wrong, please tell me who you think deserves to own the copyright to this material??

No, it doesn't work that way. Your misunderstanding is so great that it is probably impossible to explain. At the very simplest, you don't "break" one copyright with another. It's all the one copyright: it's a question of who LEGALLY owns it.

And, honestly, your opinion is not based on an understanding of the law. You may not like the law; you may disagree with it; but the legal point here is very simple. It is whether Maloof has, in fact, acquired the copyright.

No-one "deserves" to own the copyright: meaningless question. It's a (relatively) simple matter: did the person whom he paid own the copyright? In other words, was he/she able to sell it? If not, Maloof doesn't own it. It may be that the lawyer is a greedy bar steward who is simply chasing some money. I hold no brief (as it were) for him. It may be that in law, Maloof's attempts to find the heir were all that anyone could reasonably do, though the fact that the lawyer has found another heir casts doubt on this.

Instead of considering VM's pictures, think about someone selling the Brooklyn bridge...

Cheers,

R.

 

[Roger Hicks]

There is no violation without a proven claim. The copyright office has not been notified of any violations, and there are no pending cases in court. All there has been is Esq Deal making threats, and a request (called a warning) for businesses to keep records of transactions connected to VM stuff. Why not wait till Deal accepts a deal -- that is if the pedigree of his client is greater than that of the relation Maloof come to an agreement with. VM can't benefit, Maybe one or more of her distant relations whom she had no relationship with may benefit -- and Deal will benefit. And the people who appreciate VM's work will continue to benefit, and those businesses (galleries and such) that serve the photo community will benefit too. ACRIMONY.

Dear Dan,

Steer clear of legal opinions.

If you steal my car, even if I don't immediately know it's gone and even if the police don't catch you, it's still a theft.

If you damage my crops, even if I don't discover the damage until weeks later, the damage is still a tort and I can go after you for damages.

And what you call "the copyright office" is irrelevant: this is a civil matter, a tort.

Cheers,

R.