Physical Ownership vs Copyright

Mark Bench of Borro sent me this interesting Artsy post about the estate of photographer Vivian Maier. I found this very interesting as the main issue of the estate is physical ownership vs copyright in this case for photographs. If not expressly granted in writing, the artist (or artist estate) retains the copyright. I found this very interesting as a few years ago I was involved in an archives of some recordings for a donation. I continually asked about the physical ownership of the tapes vs the copyright on the recordings. I was looking for an attorneys opinion for clairty, but the client did not wish to go there, so based on that and a few other issues, I passed on the assignment.

Artsy reports

On June 30, the executor of Vivian Maier’s estate filed a lawsuit against three commercial galleries exhibiting and selling the late photographer’s images. The executor charged that the collector who lent the pieces to the gallery may have owned the physical images themselves, but did not hold the rights to display or sell the pieces. The case is the latest in a long-running legal dispute over the rights to photographs by Maier, who died penniless and without known heirs. The suit also highlights a crucial aspect of copyright law: purchasers of a physical artwork are restricted in their rights to sell and market the piece.

From a Storage Locker to The World Stage

Until her death in 2009, Maier lived an inconspicuous life bouncing between homes in Chicago’s affluent Northern suburbs and working as a nanny. The children she nannied for describe her as a unique personality, a feminist and film lover, who spent her free time wandering the streets of Chicago. There, she took tens of thousands of photographs that she kept largely to herself. In the later years of her life, most of her photographs and negatives wound up in storage, completely unbeknownst to anyone but Maier herself.

In 2007, Chicago real estate developer John Maloof purchased the contents of Maier’s storage locker at auction without knowledge of what he would find inside. Many storage companies require their tenants sign agreements that forfeit all their rights to the unit’s contents if they fail to retrieve them. But Maier never signed such an agreement, so Maloof’s acquisition of the storage unit was limited to the physical property inside.

That included around 100,000 negatives and slides, including thousands of undeveloped rolls of film. Maloof quickly realized the genius of Maier’s work and sought out gallery representation. He even helped to direct an Oscar nominated documentary about her: Finding Vivian Maier. In 2016, estimates put Maloof’s share of the existing Maier portfolio at around 90% of all her works. Meanwhile Jeffrey Goldstein, another Chicago-based collector, also began to amass a collection of Maier’s works. Maloof and Goldstein’s ownership was however, legally limited. In order to commercialize the photographs they would need to obtain permission from the copyright holders.

Physical Ownership vs. Copyright

The tumult surrounding Maier’s estate boils down to this issue: the distinction between physical ownership of a photograph and copyright ownership. Under U.S. law, copyright encompasses the author’s right to its first sale or rental, reproduction, creation of derivative works (such as prints), and public exhibition of the work. Such rights can only be transferred in writing. During her lifetime, Maier held the copyright to her work (which is always the case unless an artist assigns or sells those rights to another).

While Maier had relinquished her property rights to the objects left in the storage unit, she still held the copyrights in the absence of a written document explicitly stating otherwise—and such copyrights endure for 70 years after an artist’s death. Accordingly, because Maloof and Goldstein owned the physical negatives or photographs and not the copyright, their ability to exploit the work commercially without the copyright owner’s permission is limited to selling only that physical copy that they had, themselves, purchased.

In 2009, Maier died without a will or any known relatives who would be the heirs to her estate. Aware at this time that copyright in the images would pass to Maier’s heirs, Maloof conducted multiple genealogical studies to find an heir from whom he could purchase Maier’s copyright, eventually uncovering a distant cousin, Sylvain Jaussaud. Maloof reportedly paid Jaussaud $5,000 for the rights to Maier’s works.

But in 2014, Francis Baille, another cousin of Maier’s, sued the Estate to be named as a beneficiary. The lawsuit cast doubt on who should control the Estate, leading a probate court to appoint the Cook County Public Administrator to supervise the estate. Goldstein, and likely other owners of Maier’s works, at that time received notice from Maier’s estate that they were attempting to discover and recover assets owned by the estate. Meanwhile, the probate court has yet to determine Maier’s legitimate heir.

Maloof settled with the estate in 2016, though the terms of the settlement remain confidential. Goldstein took a bolder approach in dealing with the estate. In late 2014, after being contacted by the administrator on behalf of the estate, Goldstein abruptly sold much of his collection of Maier’s negatives to a collector in Canada, intentionally complicating the estate’s investigation of his potentially infringing activities. In particular, the Maier estate would want to review the negatives to determine those prints that were infringing reproductions. In an interview referenced in a recent complaint, Goldstein has maintained that he “would cut [his] wrists” before cooperating with the County Administrator.

Who Gets to Profit

Goldstein maintains that his skillful printmaking and talented staff are an added value, such that providing the estate with the income from his sales of Maier’s work would unjustly enrich the estate. In an interview with the Chicago Tribune his attorney articulated this sentiment, saying, “how fortunate it is that this stuff fell into the hands of people who actually knew what to do with it...Otherwise it might still be in storage somewhere.”

While a fair statement, it carries little legal weight. Copyright law does not recognize Goldstein’s contribution as a “new work” that would allow him to sell the pieces. The probate court has also disagreed with Goldstein’s argument. In 2016 it dismissed a counterclaim from Goldstein, who argued that the estate would receive “unjust enrichment” by payment resulting from his commercialization of the works because his actions had created the value in connection with the copyrighted works. After failing to come to terms with the estate, the Cook County Administrator sued Goldstein for copyright infringement. The administrator alleged that Goldstein had generated “up to $500,000 per year in annual revenue from print sales and other infringing activities.”

On June 30, Maier’s estate filed a new complaint against several galleries with which Goldstein entered into exhibition and consignment arrangements. Two of the galleries named in the complaint are foreign: Galleria Cons Arc in Switzerland and Leica Gallery Warszawa in Poland. The third gallery is Chicago-based. Several long-form agreements submitted with the complaint provide evidence of Goldstein’s grant of permission to the galleries to sell prints on consignment. They also expressly indicate that Goldstein retained all legal rights to the prints until they were paid for in full by the galleries. To the extent Goldstein never owned the legal right to sell the prints, these galleries could have a claim against him for his fraudulent assertions.

As the probate court attempts to determine the conclusive identity of Maier’s heirs, one key finding will be if closer relatives are found. While the cousins Jaussaud and Baille appear to be genuine, their ownership share of Maier’s estate could be non-existent if a more direct relative is found. Several years ago, it was reported that the search was focusing on finding relations of a long-lost brother, Charles, who died several years ago in New Jersey. Until those heirs are determined, the Cook County Administrator will continue to serve as the supervisor of the Maier Estate.

Source: Artsy