Former judge urges artists to go to court over original contracts before June auction
LONDON. A group led by a former US
magistrate judge has launched an 11th hour campaign to prevent the
auction of photographs from the Polaroid collection. Judge Sam Joyner
and others are working towards filing a motion for a rehearing at the
Minnesota bankruptcy court that awarded sale rights to Sotheby’s last
August.
A selection from the Polaroid collection
is due to go under the hammer at Sotheby’s New York on 21 and 22 June.
The auction of more than 1,200 works is estimated to fetch $7.5m-$11.5m.
As we went to press, Joyner said: “We have certainly had a number of
photographers saying they would be interested in having their rights
preserved. We are evaluating the possibilities.”
The once-mighty Polaroid
Corporation (famed for its invention of instant, negative-free
photographs, but since eclipsed by digital photography) filed for
bankruptcy twice in the past decade—most recently in 2008 in connection
with a $3.65bn Ponzi (investment fraud) scheme at parent company Petters
Group Worldwide. The Polaroid name and assets—barring the photography
collection—were acquired by private equity firm Hilco Consumer Capital
and liquidator Gordon Brothers Group, for $88m in 2009. The collection
remained behind with the defunct Polaroid Corporation, renamed PBE, and
is in the hands of PBE’s liquidators.
The
Polaroid Collection chronicled decades of experimentation by artists
including Andy Warhol, Chuck Close, Ansel Adams and William Wegman. The
collection was the initiative of Polaroid founder Edwin Land, who gave
film and equipment to leading artists in exchange for photographs.
While many of the photographs in the collection were
owned outright by Polaroid—including a core group of vintage
gelatin-silver prints assembled for Polaroid by Ansel Adams in the 1950s
and around 400 photographs taken by Adams himself—there are a
“significant” number of agreements that did not “give full and complete
commercial rights” to Polaroid, according to Joyner. He hopes to
galvanise artists involved in the collection to file motions for a
rehearing, and is contacting hundreds of photographers in a bid to check
their original agreements with Polaroid.
Polaroid’s
right to sell the collection—and the subsequent rights of the
purchasers—was dependent upon the language used in the agreements, said
Joyner. Some of the agreements only granted Polaroid licence to exhibit
and publish the works for non-commercial use, he said. Joyner believes
that both the Delaware Bankruptcy Court that awarded transfer of the
Polaroid Collection in 2002 and the Minnesota Bankruptcy Court that
approved the Sotheby’s sale in 2009, “acted without full knowledge of
the restrictive language in the many and varied licence agreements”. He
cites a sample Polaroid Collection Release form to artists which
specifically grants “worldwide non-exclusive rights for exhibition and
editorial (non-commercial) publication purposes of the…images in
perpetuity”—rather than constituting a commercial bill of sale.
A spokesman for Sotheby’s issued a statement saying:
“On August 28, 2009 the federal bankruptcy court in St Paul approved
Sotheby’s auction of approximately 1,200 works from the Polaroid
Collection. Public notice of the hearing was given in the national
media, and the hearing was well publicised. This order was not appealed
and now has become a final order of the United States Bankruptcy Court.
Proponents of a rehearing have been searching for a lawyer and a
photographer whose work is in the auction to request a rehearing since
the Court issued its order. None has emerged. Any photographer who
believed that [they] were entitled to the return of [their] work had the
opportunity before the first bankruptcy in 2002 and again in 2009 to
assert the basis for her claim. A few claims from photographers not
represented in the auction were made and they were all rejected by the
court. No claim has ever been made to any of the items in the upcoming
auction, nor has any court or Sotheby’s been presented with any
agreements that entitle the photographer to the return of any work in
the scheduled sale.”
“I don’t think that the
number of these licence agreements was presented to [the Judge] as fully
and completely as it should have been,” said Joyner. “We hope to
provide them with that full knowledge. There are hundreds of
photographers, and thousands of images involved.”
“These were not legal bills of sales but subsidiary
agreements,” said cultural journalist A.D. Coleman, whose blog Photocritic International
has served as nexus for information, and forum for discussion, about the
collection. It was through this site that Joyner first became aware of
the situation.
Coleman has posted key court
papers on his site which appear to reveal a major discrepancy in the
collection inventory—approximately 8,000 works from the collection seem
to be missing. The Schedule of Assets and Liabilities submitted by the
original Polaroid Corporation to the Delaware Bankruptcy Court on 17
December 2001 states: “Polaroid maintains a collection of photographs
and other art objects estimated to be in excess of 24,000 objects.”
Meanwhile, the 2009 motion to sell the collection which was filed to the
Minnesota Bankruptcy Court reads: “The Debtor seeks authorisation to
(i) sell all or a portion of the approximately 16,000 items that
comprise its iconic fine art photography collection.” It is unclear
where the other 8,000 works are.
Only a fragment
of the original collection is coming to auction. “It is a vast
collection and we concentrated on what we felt were the most valuable
[works] for our purposes and fair market value,” said Denise Bethel,
director of Sotheby’s photography department.
For
now, once again, the future of the collection seems uncertain. “We have
already had institutional interest,” said Bethel. “But private
collectors can be very fierce when it comes to getting things they
want.”
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