Legal dispute over ownership of Maier work

[mdg137]

That is a nice summary. Thanks

Obviously I am very dense, but I still have a question if you don't mind.

I understood that John Maloof paid a 1st or 2nd cousin (closest relative I guess) for the right to do what he is currently doing. If he doesn't "own" the copyright has he secured a right to conduct his business through that supposed heir, or whatever that cousin is considered, in the way of a limited transfer or something similar?

Others (Roger) May want to chime in on this, but transfer of copyright from one rightful owner to another is a contractual thing.

Upon Ms. Maier's death, the rights to her work became property of her estate.

If we want to get really technical, unless she established a trust prior to death, the probate court would have to appoint a representative of the estate before assets from the estate could be transferred to the heirs, or named devisees if she left a will. Without the authority granted by the court, no one would actually have the authority to transfer anything from the estate.

That aside, there is somewhere, either a single heir, or several heirs who share equal priority to inherit the rights-- priority being determined by their degree of kinship to Ms. Maier.

If Maloof secured the copyright from the correct heir/heirs in writing, then the transfer should be fine.

If Maloof secured the copyright from some relative, who had lesser priority than some other relative, and thus was, for lack of a better term, not the true heir, Maloof has nothing. One cannot transfer ownership of something they do not own.

Again, the more I think about this, I'm wondering whether her estate was properly probated prior to this transfer in the first place....

 

[Pioneer]

Others (Roger) May want to chime in on this, but transfer of copyright from one rightful owner to another is a contractual thing.

Upon Ms. Maier's death, the rights to her work became property of her estate.

If we want to get really technical, unless she established a trust prior to death, the probate court would have to appoint a representative of the estate before assets from the estate could be transferred to the heirs, or named devisees if she left a will. Without the authority granted by the court, no one would actually have the authority to transfer anything from the estate.

That aside, there is somewhere, either a single heir, or several heirs who share equal priority to inherit the rights-- priority being determined by their degree of kinship to Ms. Maier.

If Maloof secured the copyright from the correct heir/heirs in writing, then the transfer should be fine.

If Maloof secured the copyright from some relative, who had lesser priority than some other relative, and thus was, for lack of a better term, not the true heir, Maloof has nothing. One cannot transfer ownership of something they do not own.

Again, the more I think about this, I'm wondering whether her estate was properly probated prior to this transfer in the first place....

Thanks for the clarification.

 

[Roger Hicks]

. . . Meanwhile I will read with great interest the many learned opinions expressed by the various legal beagles on this forum as they struggle mightily to unravel this confusing turn of events.. .

There is no struggle, let alone a mighty one. The situation has been explained repeatedly, with absolute clarity, most notably by mdg137. The only confusion is over who actually owned the copyright on her death -- which is why (as I said before) we have courts to establish the facts and apply the law.

Cheers,

R.

 

[mdg137]

There is no struggle, let alone a mighty one. The situation has been explained repeatedly, with absolute clarity, most notably by mdg137. The only confusion is over who actually owned the copyright on her death -- which is why (as I said before) we have courts to establish the facts and apply the law.

Cheers,

R.

Facts? We don't need no stinkin' facts!

 

[NY_Dan]

Whaaaaaaaaaaaaaaaaa! Copyright shmoppyright!

9/12/2014 Marge Simpson sighted in Soho, Manhattan, NYC -- Rolleifelx 2.8f.

 

[Sparrow]

Facts? We don't need no stinkin' facts!

... counsel's opinion? 🙂

 

[Art Vandalay]

I would think, the legal interpretation of "all rights" would be rights to the physical objects-- I did a quick search and I don't see any case law directly on point, but I'm pretty certain that would be the ruling on that issue-- if it came to worst case scenario, I think a court would, simply for public policy reasons limit the rights to ownership of the physical object.

But in this instance you'd have a conveyance with consideration - the forgiveness of the indebtedness (in whole or in part based on what value the objects fetch to the highest bidder) to the storage company in exchange for all rights to all objects contained in the storage unit. Here, it may very well support a transfer of both tangible and intangible rights as the transfer would be supported by a writing, negotiated at arms-length and supported by consideration. Dunno...interesting hypothetical and relevant given reality television shows like 'Storage Wars,' and such.

 

[mdg137]

...the forgiveness of the indebtedness (in whole or in part based on what value the objects fetch to the highest bidder) to the storage company in exchange for all rights to all objects contained ....

I think this sums it up perfectly-- to the objects contained not to rights to make copies of, or derivative works based on...

 

[Art Vandalay]

Others (Roger) May want to chime in on this, but transfer of copyright from one rightful owner to another is a contractual thing.

Upon Ms. Maier's death, the rights to her work became property of her estate.

If we want to get really technical, unless she established a trust prior to death, the probate court would have to appoint a representative of the estate before assets from the estate could be transferred to the heirs, or named devisees if she left a will. Without the authority granted by the court, no one would actually have the authority to transfer anything from the estate.

That aside, there is somewhere, either a single heir, or several heirs who share equal priority to inherit the rights-- priority being determined by their degree of kinship to Ms. Maier.

If Maloof secured the copyright from the correct heir/heirs in writing, then the transfer should be fine.

If Maloof secured the copyright from some relative, who had lesser priority than some other relative, and thus was, for lack of a better term, not the true heir, Maloof has nothing. One cannot transfer ownership of something they do not own.

Again, the more I think about this, I'm wondering whether her estate was properly probated prior to this transfer in the first place....

...and if it was, why isn't the PR of the estate clamoring to reopen it? I don't know IL's probate laws but I do wonder if there are any escheat rules if no valid heir is located. If the decedent died intestate with no surviving living heir then then the property of the estate may transfer to the state of IL to be disposed of. However, I'm not about to do the research...I have actual work to do. 🙂

 

[CameraQuest]

Whatever comes of the final court decision, I think it will be very interesting and precedent setting.

How many more great photogs, writers, and artists of all kinds await to be discovered past their demise?

What about "lost" unknown recordings?
If you find a forgotten demo record of Elvis, or a unknown recording of the Doors - who owns rights to it if you have the ONLY copy?

Stephen

 

[sevo]

If you find a forgotten demo record of Elvis, or a unknown recording of the Doors - who owns rights to it if you have the ONLY copy?

That is easy - positively not you. The heirs. Or whoever purchased the full body of work including unreleased songs from the author or his heirs (or a previous legitimate owner). If you find the forgotten demo record you can however put it in your safe and refuse to have it published until you have found a mutually acceptable agreement with the rights owners - you being in possession prevents them from publication just as much as them holding the rights stops you. But beware - they are in a stronger position, as it is not unlikely that they might find another copy once they start digging, and then you would be entirely out of the deal...

 

[andrewmore]

I follow the copyright argument and the need for the court system to work out who is the closest relative.

A wider question is raised by this saga: what happens if you have a body of work purchased probably several removes from the original owner without any chance of determining the original photographer, let alone who holds the copyright? Who now holds the copyright to this sort of material? Some of the photo collections that fall into this category I have bought are probably worthy of publication.

Regards

Andrew More

 

[mdg137]

I follow the copyright argument and the need for the court system to work out who is the closest relative.

A wider question is raised by this saga: what happens if you have a body of work purchased probably several removes from the original owner without any chance of determining the original photographer, let alone who holds the copyright? Who now holds the copyright to this sort of material? Some of the photo collections that fall into this category I have bought are probably worthy of publication.

Regards

Andrew More

Simple answer, the estate of the deceased, if the original author is dead.

Simpler answer, not the owner of the collections.

More complex answer -- there is some heir, somewhere down the line that should be in line to inherit the rights. In the complete absence of an heir, different states have different laws regarding that issue.

If the owner of the collection chose to publish, copy or distribute, the risk would be dependent on whether the works had been registered with the copyright office-- if not, you're on the hook essentially for lost profits-- if they were, the added statutory penalties and pretty intense.

 

[Scrambler]

I follow the copyright argument and the need for the court system to work out who is the closest relative.

A wider question is raised by this saga: what happens if you have a body of work purchased probably several removes from the original owner without any chance of determining the original photographer, let alone who holds the copyright? Who now holds the copyright to this sort of material? Some of the photo collections that fall into this category I have bought are probably worthy of publication.

Regards

Andrew More

Depending on the age of the collection ...

Life of the author/ artist + 70 years. So if taken in 1915 by someone who died in 1940 - you're safe. If they died in 1950 - wait another 6 years.

But you don't know who so you don't know when they died...

If the photos were taken in the last 70 years they are under copyright. Someone - not you - owns that.

If more than about 150 years ago, they are not. The photographer is >70 years in their grave.

Everything in between is shades of grey unless you know who took the photos.

Remember also "fair use" within copyright. So non-commercial limited use may be legitimate. This would include academic study.

 

[tunalegs]

Depending on the age of the collection ...

Life of the author/ artist + 70 years. So if taken in 1915 by someone who died in 1940 - you're safe. If they died in 1950 - wait another 6 years.

But you don't know who so you don't know when they died...

If the photos were taken in the last 70 years they are under copyright. Someone - not you - owns that.

If more than about 150 years ago, they are not. The photographer is >70 years in their grave.

Everything in between is shades of grey unless you know who took the photos.

Remember also "fair use" within copyright. So non-commercial limited use may be legitimate. This would include academic study.

In the United States, anything published before 1923 is in the public domain (with a few exceptional exceptions). There are a few other instances where things may be in the public domain and are newer, but this would be extremely difficult to prove or discover if it were somebody's personal work, and not say a published book, movie, etc. For works that were never published, and for whom the author is not known the copyright term is 120 years.

Fair use may also be commercial, whether or not one makes money off of it is irrelevant. but the use has to be transformative. Just for example, if you bought a person's private collection of photographs and then published a book "This person's private collection of photographs" that wouldn't be fair use. But if you published a book "Gas station pumps of the 20th century" and only used crops of photos from their collection showing gas station pumps - you'd have created a new work which transforms the point of their original work. And you could sell that book for whatever profit you wanted (assuming of course anybody would buy it).

 

[Sparrow]

Whatever comes of the final court decision, I think it will be very interesting and precedent setting.

How many more great photogs, writers, and artists of all kinds await to be discovered past their demise?

What about "lost" unknown recordings?
If you find a forgotten demo record of Elvis, or a unknown recording of the Doors - who owns rights to it if you have the ONLY copy?

Stephen

... what I find dispiriting is that all this wrangling will delay the publication of her work. From what I've seen so far it certainly has some merit, and there's always something to learn from any artist who works in isolation I think ... still not being published may well have been part of Ms Maier's vision I suppose

If this were in the UK the parties would need to go through mediation first, then a meeting with a judge at the high court to set costs and a issue an order with a timetable for the various submissions and the trial ... with a bit of luck that judge could decide to test the contractual bit first, that might speed things up a bit

 

[Paul T.]

Whatever comes of the final court decision, I think it will be very interesting and precedent setting.

How many more great photogs, writers, and artists of all kinds await to be discovered past their demise?

What about "lost" unknown recordings?
If you find a forgotten demo record of Elvis, or a unknown recording of the Doors - who owns rights to it if you have the ONLY copy?

Stephen

I have a few friends who search out such recordings - they have real value. Sometimes they auction them on; sometimes they even get informal permission from the artist, publish the material and pay royalties directly to the artist (and not to the record company who hold them under contract). There are many bootlegs around where money goes to the musicians. There is certainly a grey area to be exploited. And if you end up auctioning the tapes, there will be other bidders beyond the record company who holds the relevant artist under contract.

 

[panerai]

Read this interesting article. Including this part of the article which was interesting

http://www.latimes.com/entertainmen...-photos-copyright-20140912-column.html#page=1

In 2007, two years before Maier died, Maloof acquired the first batch of her work from a liquidator who had purchased the contents of five of Maier's storage lockers. Maier had defaulted on payment on these lockers and their contents had been taken over by the storage house, which sold them to Roger Gunderson, who then sold them at auction to Maloof, a dealer named Jeffrey Goldstein and others.


The storage-house default means that the auctioned objects wouldn't be governed by estate laws, but by contractual laws within the state of Illinois. And with that, may ride the question of copyright ownership.

Daniel J. Voelker, of Voelker Litigation Group, is an attorney in Chicago who has worked on cases relating to trusts and estates for three decades. He says the status of Maier's copyright on these particular images may be tied up with the contract she signed with her storage company.

"Usually, you'll see language in those contracts that says that if you don't make your payment by a given date, the contents of that storage locker becomes the property of the storage house, and ... all rights, title and interest go to the storage company," he explains.

Did Maier sign away her "rights" when she signed the agreement with her storage company?

DON

 

[ampguy]

I think RFFers should band together during these difficult times and on a specific day and time, all go to their local bookstore, grab all the VM books, and RUN!!

Let's keep art free or owned by the artists.

I'm just p*ssed that the guy with two or more VM cat photos won't even share them with the public. He is probably holding out for 7 digits or more before anyone can view those.

 

[ampguy]

Since I presume we're in different time zones, let's standardize on Zulu time.