. . . I met Coleman at an SPE conference a few years ago . . . and I wondered how he could be so consistently luddite and backward about the future of photographic education. Mainly, judging from his web presence, I really don’t feel like he “gets” the internets.

Coleman was hawking a subscription-based service for scholars that sought to profit from the formative documents/writings of photography rather than making them open access. I find locking up the past behind a firewall is abhorrent, and I just couldn’t convince him (in a brief conversation at least) that the future should be open and accessible repositories. The problem, of course, is what sort of funding model you use. I’ve never been able to get interested in the subscription model and I sincerely believe that it is the responsibility of institutions (government, museums, schools, even corporations) to feed into a public commons to further the public good. Monetized knowledge is suspect, for me at least—I don’t buy it.

. . . While someone needs to pay for these pursuits, . . . insistence on strict adherence to a business model erodes the public good. . . .

— Jeff Ward, “Pumping and Dumping (the Art Marketplace)”

Yes, there I was at that Society for Photographic Education National Conference a few years back, standing behind the table I’d rented in the conference Exhibits Fair, unabashedly “hawking” my wares — including the project I subsidize, organize, edit, and publish online, the Photography Criticism CyberArchive, a deep repository of historical and contemporary texts on photography and related matters by a wide range of authors. Jeff Ward stepped up to my table during store hours to tell me that I was doing it all wrong, and here we are.

Let me spell out the origin of the project in question. The idea for the PCCA came out of a decade’s observation of and engagement with content aggregation and delivery via the web. (PC Magazine defines a content aggregator as “An organization that combines information such as news, sports scores, weather forecasts and reference materials from various sources and makes it available to its customers.”) Many of the instances and examples had proved negative, primary among them the massive Lexis-Nexis infringement (including work of mine) that led to the landmark Tasini vs. Times Supreme Court decision and the much smaller-scale looting of dozens of essays from dozens of writers by the Paul Kopeikin Gallery (also including work of mine).

Many content aggregators did it wrong, from my standpoint, starting with their basic assumption that they could and should get their content free of charge. How, then, could one do it right? That would involve serving the needs of all concerned:

1. Content providers should have their copyright and subsidiary rights respected and protected; they should have the option of agreeing to participation or refusing it; and they should get paid for their content.
2. Content users should receive access to substantial material otherwise unavailable online; they should get it in an easy-to-use format; as students, teachers, scholars, or simply readers, they should have it accompanied by the permissions necessary for appropriate personal and professional use — bibliographic annotation, permission for “fair use” quotation, the right to print out hard copies for note-taking or attachment to papers as documentation; and they should feel secure in the knowledge that they are not trafficking in stolen property.
3. Subscribers, whether individual or institutional, should have the same assurances re the formal licensing of all copyrighted materials included, and schools in particular should enjoy the confidence of knowing that their faculty can legitimately use the content in constructing online coursepacks, assigning essays for class readings, and otherwise making use of this resource in a variety of convenient ways.

Out of this set of desiderata came the model of the PCCA, which differs from a large-scale content aggregator such as Lexis-Nexis or JSTOR in several key ways:

• It’s subject-specific (photography and related matters), thus narrowcast rather than scattershot;
• it’s edited, not just an indiscriminate heap;
• its contracts are made not with editors and publishers but with content creators or their estates;
• all of its copyrighted content is licensed from those sources;
• and contributors of copyrighted material get paid for their material.

Thus it also differs from an informal content aggregation like Doug Rickard’s AmericanSuburbX in that it contains no unauthorized content and pays its contributors. (Note: Rickard’s site wasn’t online when I started up the PCCA, but I saw other non-commercial sites similar to his using bootleg material.)

This structure for the PCCA solved the primary problems I detected in the then-existing models for content aggregation. It’s proved a modest success, with some institutional subscribers and some individual ones. It hasn’t developed a wider subscriber base due to limited publicity and marketing time at my end, which has also restricted my expansion of its content. If it hasn’t met or exceeded my expectations, in short, that’s my fault and no one else’s.

So, by my lights, the PCCA hasn’t yet had a full test of its potential. Yet, six years down the pike, I have yet to find serious flaws in it. The reviews have proved favorable so far; see the one by Thomas Gearty at Henry Horenstein’s TeachingPhoto.com, for example. And I’m pleased that the model has the potential of functioning in a transportable way — meaning that it could get applied to construction of any subject-specific content aggregation.

I’d welcome corporate sponsorship or foundation support, which would enable steadier growth of content and perhaps make possible either the reduction of subscription prices or the donation of subscriptions to individuals and institutions. But I don’t have time for the elaborate grants-proposal writing and submission process, and don’t see going around with a begging bowl as the ideal way to subsidize this project.

To date I’ve funded it myself, out of pocket and with the modest revenues that it’s earned. I specifically planned this venture to become financially self-sustaining, because I lack Ward’s blind faith in the short-term and long-term availability of corporate or foundation support. I’m much more confident that the PCCA can — and should — pay for itself.

Museums and schools are among the PCCA’s actual and anticipated subscribers, obviously. While you can subscribe to the CyberArchive as an individual, it’s really designed with institutional subscription in mind — a situation in which one subscription fee would pay for access by a sizable user base. Pro-rated across such a constituency, the per-user cost becomes negligible. Thus it has more in common with JSTOR, for example, geared for academic libraries, than with the Wall Street Journal’s online edition, aimed at individual readers.

However, concerning Ward’s “sincere belief” that museums and schools “should” subsidize projects like this, wishful thinkers need to know that doesn’t happen automatically, or immediately — and sometimes not at all, or not sufficiently. You can wait for pennies from heaven, and announce “sincerely” that they “should” rain down. Or (the horror! the horror!) you can embrace a business model that requires your project to earn its keep.

There you have the PCCA’s premises. They don’t guarantee the project’s immediate or eventual success. But I’ve based it on a clearly defined model that takes into account all the constituencies by which a content-aggregation site should get held accountable. And I exclude from that list, deliberately, the fiscal know-nothings who disregard such a venture’s unavoidable production costs and want all that for free.

Which includes, obviously, Jeff Ward. Ward has no alternative model to offer. He proposes no way to cover the expenses of putting large quantities of content online in ways that respect the rights of their creators, compensate them for their efforts, or cover the costs of production. He has, in short, no ideas to contribute to the discussion. What he has plenty of — all he has on this score, as it turns out — is attitude.

(To be continued.)

Polaroid Model 20 Swinger Manual, 1965

It ain’t over till it’s over, as Yogi Berra famously remarked.

Presently a distinguished law firm is in dialogue with a distinguished photographer concerning the possibility of filing a Motion for Rehearing of the August 27, 2009 decision by the Minnesota Bankruptcy Court to allow the breakup and sale at auction of the unique, historic Polaroid Collection.

For obvious reasons, I can’t disclose the identities of either the law firm or the photographer, and won’t unless and until they decide to move forward with this appeal and make that decision public. If they do so, then the photographer in question would become the lead plaintiff (if that’s the right term) in the motion. He’s qualified to do so, as he has several dozen prints in the collection, which, legally, gives him standing in this case. Other photographers with works in the collection would then get invited to sign on as additional plaintiffs, starting with those who’ve communicated to me their interest in participating in such a suit. So if you haven’t sent me an email indicating your desire to join in such an action, please do that at your earliest convenience.

As I don’t have standing in this case — “no dog in the fight,” as Federal Magistrate Judge Sam Joyner puts it in his extremely helpful Guest Post here at Photocritic International — I can’t push this forward any further myself. But I can get the word out as things develop, gather names and information, provide a platform for those who have something to say on the subject, and of course voice my own opinion as matters proceed.

I find it remarkable that, at this late date, neither the photo press nor the art press has paid any significant attention to the impending dispersal of an unduplicable collection of some 16,000 images. The only notice of this so far that I’ve seen in any art/photo periodical has appeared in the small-circulation newsletter The Photograph Collector, which in several recent issues has reprinted George Slade’s report on the August hearing, along with some of my own reporting on the situation. (Let me take this opportunity to wish Stephen Perloff, intrepid editor of both The Photo Review and The Photograph Collector, a speedy and full recovery from his recent heart attack.)

Tom Petters mug shot, October 2008

Meanwhile, the man who caused all this, ex-appliance wholesaler and Ponzi-schemer Tom Petters from St. Cloud, MN, is now on trial in Minneapolis. That’s getting big-time coverage from multiple sources, including the New York Daily News. And, as Susan Carey reports in the October 28 Wall Street Journal, “Petters Isn’t Going Down Without a Fight.” Seems he was aided and abetted in the scam that has put the Polaroid Collection in jeopardy by one Larry Reynolds, a government informant now in the federal witness-security program. Which means the Feds oversaw the construction of the scheme for which Petters stands indicted. That’s become a key point in Petters’s defense.

All of it very juicy, and I look forward to the denouement, however it plays out. I’d find it more entertaining, and less depressing, if the blowback from this rip-off artist’s failed magnum opus didn’t imperil an invaluable photographic resource. That’s a very small part of the much larger story, but the one that comes closest to home, and thus the one about which I care the most.

So I continue to pursue that aspect of the tale. Along the way, I should add, I’ve received yet another version of the standard release form used by Polaroid in its acquisition of works for the collection. As do most other examples of this document that I’ve acquired, this one includes no language indicating transfer of ownership, sale, or other outright and complete relinquishment of all rights thereto by the photographer. Instead, it specifically indicates that “I _____ hereby grant Polaroid Corporation and its companies, the worldwide non-exclusive rights for exhibition, editorial, publicity, and non-commercial publication purposes—e.g. print, electronic, Internet, CD-ROM—of the following images in perpetuity. I represent that in each case the photograph is mine and is fully released.”

I find no way to interpret this as a bill of sale. According to this document, as with its predecessors, Polaroid acquired only “non-exclusive rights” for specified purposes. If those rights were non-exclusive, then someone else shared them, and likely had other rights to these works as well. Which makes them joint property, meaning they can’t be sold without the consent of the other party to those rights.

What’s notable about this iteration of the form is that it bears a March 2005 date, and came from the desk of Barbara Hitchcock, then director of the Polaroid Collections. That’s several years after the first Polaroid bankruptcy and reorganization of 2002, suggesting that even in its final years the collection adhered to the policy and practice of acquiring only limited usage rights to the works it now claims to own outright and wants to sell.

Ward has convinced himself, and seeks to convince his readers, that asking to get paid for the labor and expense involved in this project makes me a “luddite” and someone who doesn’t “get’ the internets.” [Plural his.] I regret that I find myself unexpectedly crossing swords with Ward, because I enjoy his well-written blog, this Public Address 4.0, and find him generally a thoughtful commentator. In this instance, however, Ward’s naïveté and inexpertise are glaring.

Let me start my analysis by defining the experience level from which we each speak. I’ve made my living as a working professional writer since 1968. This means that, in large part, I derive my income from licensing usage rights to my writings. That in turn requires others — book and periodical publishers and, to a lesser extent, online publishers — to consider that writing worth paying for, which signifies that, in most cases, they have readers willing to pay money to read what I write and/or advertisers ready to subsidize its presentation.

Ward staunchly opposes “monetized knowledge,” by which he means any “business model” that involves people (for which read him) paying for the privilege of access to intellectual property produced by others. Yet, in the same polemic, he states that “Coming of age as a photographer in the late 70s/early 80s, I was [sic] railed against postmodern critics such as Andy Grundberg and Peter Galassi (still do, in some respects). A. D. Coleman was a breath of fresh air, and reading his constant columns in Photo Metro and elsewhere, I had the feeling that I wasn’t completely alone in appreciating both a rich tradition and new frontiers for photography.”

I appreciate the kudos, of course. But Ward demostrably doesn’t “get” the real world. What made it possible for him and many others to read my “constant columns in Photo Metro and elsewhere” was precisely my ability to “monetize” the IP I produce. I did this by (a) ensuring that its quality and substance would attract an audience, and then (b) putting it in the hands of a network of editors willing (at least in part) to pay for it, so that (c) I could make a modest living from generating it, thereby (d) enabling myself to continue creating it. In the trade we call this “self-syndication”; it’s a labor-intensive but sometimes viable way of ensuring wider distribution of one’s writings via multiple publications thereof.

In short, it’s a “business model,” to use a term that Ward employs as an epithet. Unlike him, my colleagues at the National Writers Union don’t disdain it. I’m a founding member of the NWU, which has engaged me periodically to teach this business model to my fellow professionals. If you intend to earn your living as a professional writer, you’d damn well better have a business model if you hope to survive. It took me awhile to develop my own; no one taught it to me. But I couldn’t have made it through 40-plus years as an independent freelance critic, historian, and cultural journalist without one.

Ward doesn’t need to have a business model for his writing, and can afford to sneer at the idea, because he’s an amateur writer. From the scant biographical info he offers at his blog, he’s 51, living in the Twin Cities, and part-way through a doctorate at the University of Minnesota. I assume he’s either independently wealthy or has some revenue stream from professional activity other than writing. So far as I can tell, he has never produced any writing for which anyone — whether publisher, editor, or reader — would pay. Thus self-publication and free distribution are apparently his only recourse. Perhaps this inability to establish a successful business model for his own writing explains his drive to persuade others to follow his example. Or perhaps he simply enjoys the role of perpetual amateur as a writer.

In any case, the debate here runs between a working professional writer with four decades’ experience as such and an amateur writer who’s published a blog for eight years. The reader can ascribe credibility as he or she considers reasonable in that circumstance.

Per Ward’s account, we did indeed meet at a Society for Photographic Education National Conference several years ago. I’d dropped out of the SPE in 1986, for a variety of reasons. When I decided to rejoin, circa 1997, I found it devolving —  as actively planned by its board of directors — into a student organization, hybridized with the business model of the Audubon Society. ($25 and an interest in birds and poof! you’re a member . . . and they’ll waive the interest in birds.)

Mostly out of nostalgia for the days when pioneers in the field — Van Deren Coke, Barbara Morgan, Wynn Bullock — attended these events, and in order to stay in touch with respected colleagues (Robert Heinecken, Joyce Neimanas, Carl Chiarenza) who put in occasional appearances, and for the feedback it provided from the academic sector of my readership, I started going to the conferences again. I offset the expenses thereof by renting a table in the conference Exhibits Fair, alongside Aperture and Nazraeli Press and Sprint Systems and Nikon and the Maine Photographic Workshops.

Table rental gave me two conference passes, one of which I’d turn over to my webmaster, John Alley, as a way of thanking him for years of uncompensated service. Between what that saved us on conference registration fees and what I pulled in from book sales at the table, I covered a chunk of conference costs for both us and even some of my travel expenses. Seemed a fair deal (as a business expense): my own little storefront for two days, with the likelihood of breaking even on the costs thereof.

I used this temporary shop to sell (and autograph, when requested) copies of my books — monetized knowledge! — that I transported there; to meet and greet my colleagues, their students, and various others; to distribute information about my two free-access websites (The Nearby Café, already up and running when I reinvolved myself with the SPE, and the New Eyes Project, premiered in 2006); and, upon its launch in 2003, to explain, answers questions about, and sell subscriptions to the Photography Criticism CyberArchive, the site that has evoked Ward’s ire.

So when Ward stepped up to my table in the Exhibits Fair at the SPE National Conference, he walked into my shop — my place of business — during business hours. He didn’t have the courtesy to ask me if I could spare the time to meet with him after business hours so he could discuss my Archive project with me. He simply began haranguing me, in front of my actual and prospective customers, about how I should give my wares away free of charge.

When Ward writes “I just couldn’t convince [Coleman] (in a brief conversation at least) that the future should be open and accessible repositories,” therefore, he elides his own rudeness and unprofessionalism in interfering with my trade by standing in front of my sales table and giving me a hard time, until I broke through his persistent diatribe and made it clear, as tactfully as I could, that I considered his behavior inappropriate in the situation and his presence in my shop unwelcome. Not to mention the presumption of his conviction that, as a newbie writer of amateur standing, he’s thought longer, deeper, and better than I and others have about the questions involved in content aggregation and the online distribution of IP.

Ward himself says of the “information wants to be free” crowd, “Information doesn’t want anything. The public that uses it does.” Of course the slogan is ridiculous; I’ve mocked it myself for years. But, in relation to IP, many of the “wants” of “the public that uses it” are no less foolish, and some are actively harmful. Most pernicious is the sense of entitlement underlying the assumption that one “should” get anyone else’s labor at no cost. Follow the tortured logic behind that arrogance and you end up with slavery, though whoever leads you down that path surely won’t put that name to its destination.

Who doesn’t want free IP? For that matter, who doesn’t want free shoes? Curiously, people like Ward, who would never dream of stepping into a shoe store and demanding a gift of footwear, have no problem insisting that others provide them with with non-”monetized” (for which read free) knowledge, information, data, and other forms of IP. What hypocrisy. I guarantee you that when Ward left my table at the SPE conference Exhibits Fair he didn’t walk over to the booths of Kodak or Adobe or Apple or Calumet Photographic or Blurb.com to castigate their reps as they “hawked” their wares for not providing him with free hardware, software, photo supplies, or production of his photo books. They’d have been far less courteous to him than I was.

If wishes were horses then beggars would ride. I may not “‘get’ the internets” in the way Ward insists I should, but I track it steadily enough to know that the current discussion among content providers concerns what many refer to as “the end of free.” As Mick Jagger sings, “You can’t always get what you want — but, if you try real hard, you just might get what you need.” On that note, I’ll turn next to the identified target of Ward’s condemnation: the third website I organize, publish, edit, and fund, the Photography Criticism CyberArchive. It has an unusual business model, as it happens, and one of which I’m quite proud.

(Continued.)

True, he doesn’t say exactly that. As he puts it, so nicely, in “Pumping and Dumping (the Art Marketplace),” the May 31, 2009 post at his blog, this Public Address 4.0, “the future should be open and accessible [online] repositories.” Pretty to think so, I’m sure. He goes on to say, “Monetized knowledge is suspect, for me at least — I don’t buy it.”

I assume this means that in addition to demanding and expecting all online content for free Ward steals all the books and periodicals in his personal library (or else does all his reading at the public library). Books, magazines, newspapers . . . those are all “monetized” forms of knowledge, meaning that suspicious characters in charge of publishing houses have nefariously decided to charge money for their products. Shame, shame on those rotters.

Unquestionably, in proposing that “monetized knowledge” distributed via the web is all “suspect,” Ward impeaches all the pay-per-view/subscription-based content online at such sites as Wiley InterScience, JStor, and LexisNexis. A fascinating bit of posturing, but highly arguable, especially when the posture gets struck by someone who articulates no single viable idea about how any such online content-aggregation project could sustain itself financially.

I wouldn’t take this personally, except that Ward delivers it in the context of a personal attack on me. This blog post of his begins with a substantial quote from an essay of mine. No problem there, but the irony, lost on Ward, is that he took this quote from a pirated online publication of my text from serial infringer Doug Rickard at his blog AmericanSuburbX. (I terminated this unauthorized presentation of my copyrighted text at Rickard’s website as soon as I discovered it. Click here for my post on this experience.)

The Leader of the Luddites, engraving of 1812

Ward then has some complimentary things to say about my writings before lowering the boom: “I met Coleman at an SPE conference a few years ago . . . and I wondered how he could be so consistently luddite and backward about the future of photographic education. Mainly, judging from his web presence, I really don’t feel like he ‘gets’ the internets.” [Plural his.]

To begin with, in my own defense, I swear on my copy of Wikipedia that I have always believed there’s only one internet, and that I’ve never used the phrase “the internets.” Ward, however, uses the plural version not only in referring to his conversation with me but, praisefully, elsewhere in the same post: “Akma gets the internets.” Here’s what Wikipedia has to say about this usage: “‘Internets’ is a Bushism-turned-catchphrase used humorously to portray the speaker as ignorant about the Internet or about technology in general, or as having a provincial or folksy attitude toward technology. Former United States President George W. Bush first used the word publicly during the 2000 election campaign. The term gained cachet as an Internet humor meme following Bush’s use of the term in the second 2004 presidential election debate on October 8, 2004.” As neither of Ward’s usages of the plural comes in a humorful passage, it seems he’s convinced there’s more than one internet — perhaps operative in a parallel universe.

Ward doesn’t make clear what he considers “consistently luddite and backward about the future of photographic education” in my ideas. So I’ll leave that one alone. (I assume that E. P. Thompson’s radical rethinking of the Luddites in The Making of the English Working Class hasn’t crossed his radar screen.) Ward does specify, however, that “judging from [Coleman's] web presence, I really don’t feel like he ‘gets’ the internets.” Setting aside the possibility that he knows of a second internet unfamiliar to me, which I would readily admit to not “getting,” let’s look at this internet presence of mine that condemns me in Ward’s eyes.

First, there’s my original website, The Nearby Café, online since fall 1995: a multi-subject electronic magazine with a dozen subject areas and hundreds of pages of visual, textual, and A-V content, contributed by several dozen writers and photographers and artists, me among them. Published and edited by myself, supervised by webmaster John Alley, redesigned pro bono a few years ago by my friends Marc and Nacia Miller of Crossbeam Studio in Toronto. The Nearby Café’s flagship content area was my online newsletter on photography and related matters, “C: the Speed of Light,” initiated in spring of 1995; 38 issues of “C” are archived there, along with a bunch of my essays. That newsletter has now turned into this blog, Photocritic International, still embedded within the Café. The entire site is funded by myself — no advertising, no sponsor, always completely free access to all content.

Presumably Ward, a relative Johnny-come-lately to the web, didn’t know of this site, which for the past 14 years has done exactly what he asks of websites: steady delivery of non-”monetized” content.

Then there’s the most recent website I publish, The New Eyes Project: A Resource for K-12 Photo Education. The New Eyes Project exists to serve all those involved in K-12 photography education: teachers, students, program directors, sponsors, arts-education theorists, and anyone else interested in teaching photography to young people around the world. Inaugurated in spring 2006, created in collaboration with webmaster John Alley, who designed it (and who teaches high-school photography himself in Richmond, VA), The New Eyes Project also has no advertising and no sponsor. All its content (provided by myself and others) is free for access to anyone. As time allows, we add new content, and have plans to develop forums and picture galleries and other features as and when our energies and funds permit.

Presumably, once again, Ward didn’t know of this site, which for the past 3-1/2 years has done exactly what he asks of websites: steady delivery of non-”monetized” content, though admittedly nothing as robust as the Café. His ignorance notwithstanding, the Café and the New Eyes site constitute the best-known elements of my “web presence,” and I insist that any critique of my web presence take them into account or else be judged as either woefully uninformed or deliberately skewed.

With that as prelude, I’ll turn next to the encounter with Ward that apparently sparked his indignation over the third website I organize, publish, edit, and fund, the Photography Criticism CyberArchive.

(Continued.)

That’s right. To be specific, dead fish. Neuroscientist Craig Bennett, now a postdoctoral researcher in psychology at the University of California at Santa Barbara, bought an entire 18-inch-long, 1.7 kg (3.8 pounds) Atlantic salmon at a fish market and put it into a Dartmouth College lab’s fMRI machine, a device used to study the brain. As the fish lay in the scanner, Bennett and his colleagues showed it “a series of photographs depicting human individuals in social situations with a specified emotional valence.” The salmon “was asked to determine what emotion the individual in the photo must have been experiencing.”

Salmon photo critique methodology

Analysis of the voxel (3-D or “volumetric” pixel) data from the area of the salmon’s minute brain showed evidence of activity. In short, it appeared as if the definitely dead salmon was thinking about the pictures shown to it. (See Alexis Madrigal’s September 18, 2009 report, ”Scanning Dead Salmon in fMRI Machine Highlights Risk of Red Herrings,” at Wired.com.)

Salmon as photo critic

“By complete, random chance, we found some voxels that were significant that just happened to be in the fish’s brain,” Bennett said, according to Madrigal’s story. “And if I were a ridiculous researcher, I’d say, ‘A dead salmon perceiving humans can tell their emotional state.’” (Click here for the full study from team Bennett, “Neural correlates of interspecies perspective taking in the post-mortem Atlantic Salmon: An argument for multiple comparisons correction.”)

Oncorhynchus keta/Chum salmon

I hasten to point out a fundamental conceptual error that Bennett and his colleagues have made, as exemplified by this last statement. Their subject, said dead salmon, was not “perceiving humans.” It was perceiving photographs of humans. The relationship between a photograph of a thing and the thing itself is indexical at best, and fraught with complexities and qualifications. Clearly Bennett et al need to read more theory of photography.

On a positive note, Bennett and his group also scanned a pumpkin and a Cornish hen (both certifiably deceased) with no resulting critical commentary. What a relief. Nonetheless, something like this can give photo criticism a bad name. Surely none of us who undertake this nettlesome role want to hear someone snarking “A dead salmon could do as well.”

(I must confess that I have colleagues about whom one could justifiably say that. In the interest of full disclosure, I should also acknowledge that in the late winter/early spring of 1977 I was involved in training two Louisville-based canines as photo critics. Both those furry colleagues have long since shuffled off the coil, but video documentation of one of my tutorials endures, and will eventually make its way into this blog.)

Bennett intended the resulting report to emphasize the need for multiple correctives in statistical analysis to reduce the risk of false positives, which are commonplace in neuroimaging research. But clearly this project has repercussions outside the field of statistical analysis, entering as it does the territory of critical analysis of photographs. Among my people (on my father’s side) we commonly say “Better than a slap in the face with a wet fish.” Taking my cue from this, I offer my colleagues a new motto for photo criticism, already sized and suitable for printing out and pasting onto a button for your shirt or sweater:

Better than a critique from a dead salmon.

In support of Yanes’s contention, Beam cites (from documents first posted here) the language of the “release form” Polaroid used in acquiring many works for the collection — language that certainly does not give Polaroid clear and unencumbered title to those works. He also quotes photographers Erica Adams, Joel Meyerowitz, and John Divola, all of whom have work in the collection. (Beam quotes me as well, and cites the various posts at this blog as source material — so at least this campaign has begun to get the word out into the larger media environment.)

Ansel Adams, Singular Images (1989)

Beam closes his piece with a statement from William Turnage, manager of the Ansel Adams Trust. “I am disappointed that it has come to this,’’ says Turnage; “I suspect that Dr. Land is rolling over in his grave.” (Might as well glue those cards right on to the vest.) Several people have asked me why the Adams Trust hasn’t entered the fray, given that the lion’s share of the proposed prime auction material from the collection, more than 600 pieces, are Adams prints. I assume (but haven’t corroborated this) that virtually all the Adams works in the Polaroid Collection resulted from his long-term commission as a paid tester for Polaroid products, which would have defined the samples he submitted with his reports as work made for hire (WMFH), thus the actual property of the corporation that commissioned his research. If I’m wrong about that, or if Polaroid’s contracts with Adams gave him ongoing rights in perpetuity to use the images, then the Adams Trust has a bigger dog in this fight than most. Perhaps Mr. Turnage will enlighten us on this subject.

And here’s a much shorter piece from ArtInfo. Notably, both stories mention the problematic nature of the contracts and letters of agreement between the photographers represented and the Polaroid Collection — an issue first brought to light by Photocritic International. So the terms of of those agreements, whose obligations to the photographers the Minnesota Bankruptcy Court has summarily voided, have begun to surface elsewhere.

Meanwhile, Marion Maneker recaps the situation in her September 8 piece for Art Market Monitor, melodramatically titled “Polaroid Rage” (a bad pun on “road rage”?). This consists mostly of quotes from other reports, and doesn’t add any new information of its own. Nonetheless, every little bit of coverage helps.

•

On the legal front: So far, I haven’t located an attorney willing to handle the Motion for Rehearing that Federal Magistrate Judge Sam Joyner proposed as the logical next step. The Minnesota Bankruptcy Court is in Minneapolis/St Paul, which is where the Motion for Rehearing would have to get filed. Doesn’t have to be a Twin Cities lawyer, though that would help just in terms of logistics. But it does need to be an attorney qualified to file in Minnesota.

The key action right now is filing the Motion for Rehearing, with a number of photographers signed on as plaintiffs. I already have a list of roughly 30 photographers willing to become party to such a motion. Once that’s filed, I’m sure others will agree to join the motion. With that motion filed, we’d then demand disclosure of all of Polaroid’s contracts, letters of agreement, and other documentation of acquisition of the work in the collection. It would take them months to put that together. This will effectively stall any forward motion on the auction from Sotheby’s, which would likely not invest further in that project if the marketability of the collection gets challenged.

Polaroid i-zone Translucent Pocket Instant Camera, Phat Blue

Once the court actually looks at the documentation of the collection, Joyner believes it will have no choice but to declare much of the collection unsuitable for sale. (See his Guest Post of September 15th, 2009 for his detailed analysis.) The choices would then be (a) return those works to the individual photographers and/or estates, or (b) find a repository that would accept the entire collection while abiding by the terms of the contracts.

If the court re-approves the sale after looking at the documents, that decision can be appealed, and would then get heard by a different judge at a different level. So, even if it costs a few thousand dollars to pay for the filing of the Motion for Rehearing, it would put the brakes on this for months, possibly years. That would create enough breathing room for a more coordinated campaign for relocating the collection to get underway.

I’ll continue to search for a qualified attorney willing to take this on pro bono, but welcome my readers’ efforts in identifying such as individual or firm, and of course would delight in a volunteer walking through the door.

•

The Minnesota Bankruptcy Court’s approval of the motion to send this collection to the auction block has practical consequences for the photographers represented. The court’s decision imposes several immediate hardships on them:

1. It has made it impossible for the photographers to register copyright of their works in the collection. To register copyright of anything (image, text, sound recording, whatever) with the Library of Congress Copyright Office, you have to provide a copy thereof to them. The works in the Polaroid Collection are by definition one-of-a-kind pieces, and most of the photographers represented didn’t make either reproduction-quality transparencies or scans of the positives before letting Polaroid have them. They’d have felt no urgent need to do so, since the agreements gave them access in case they wanted to do that later (for a book reproduction, or a dog-food ad, or whatever). So they can’t provide the documentation of the material necessary to register copyright thereof. Among other consequences, therefore, the Minnesota Bankruptcy Court has deprived the photographers in the collection of their ability to register copyright to their works. And registration of copyright, as the court surely knows, strengthens the copyright holder’s hand in any legal situation involving a rights dispute.
2. The court has also deprived them of the ability to license subsidiary rights to their works. While the contracts between Polaroid and the photographers generally forbade Polaroid from making any commercial usage of the imagery or licensing subsidiary rights thereto, the photographers retained those rights: to license their works for publication, advertising, reproduction on posters, etc. Since in most cases the photographers did not make copy negatives or digital scans of their works before depositing them in the collection, they can only exercise their subsidiary rights if they can exercise their previous contractual rights to borrow their works for such purposes. This was, in fact, part of the reason for the unusual agreements between the collection and the photographers — those contracts enabled the photographers to obtain their works on short-term loan from the collection for publication or other purposes, which would involve the making of copy prints, negatives, or scans (that, not incidentally. could also get used to register copyright). The court’s specific language — “… the Polaroid collection at issue in this hearing is a collection of physical objects, not licensing rights …” — conveniently ignores the obvious fact that the decision effectively terminates the photographers’ ability to exercise and profit from their licensing rights, even if it doesn’t transfer those rights to other parties.

Polaroid One600 Classic Instant Camera

The court’s decision basically puts these works permanently outside the photographers’ reach. You can bid and buy anonymously at Sotheby’s, and that auction house has no obligation to reveal the identity and contact info of any buyer. So if I buy one of these pieces myself, anonymously, through direct bidding or through a dealer, how does Photographer A contact me to exercise his/her right to reproduce that work for a forthcoming monograph, or obtain a transparency in order to license rights for a lucrative commercial usage?

•

A footnote: Earlier this week, subscriber Mary Ann Lynch told me of a show of 36 works, “Tribute to Polaroid: Photographs from The Polaroid Collections,” that took place at SOHO Photo Gallery in New York in November 2008. This exhibition included works by Paolo Gioli, Diana Bush, Pierre-Louis Martin, Zeva Oelbaum, Franc Palaia, Stephen Petegorsky, John Reuter, John Wood and Natale Zoppis, among others. Curated by Barbara Hitchcock, it may well have been the last show ever drawn from the collection.

The Social Scene, MOCA (2000)

This past week, I discovered that a complete essay of mine, “Diane Arbus, Lee Friedlander, and Garry Winogrand at Century’s End,” had become available online at Doug Rickard’s blog, AmericanSuburbX: Photography & Culture. Commissioned by the Museum of Contemporary Art in Los Angeles, this 3600-word essay had appeared originally in the catalogue of that institution’s exhibition The Social Scene: The Ralph R. Parsons Foundation Photography Collection, published in 2000. (For a description of this survey show, click here.) Copyright to this essay, and all subsidiary rights related thereto, belong to me.

Since the “fair use” exception to the copyright law does not permit unauthorized publication of an entire essay under any circumstances, I sent Mr. Rickard a query:

What’s the basis for your publication of my copyrighted essay, “Diane Arbus, Lee Friedlander, and Garry Winogrand at Century’s End” at your blog?

He replied as follows:

Hi A.D.,

I thought that it needed to be seen rather than buried somewhere in an archive.

Let me know if you would prefer for me to delete it and I will do so or I can add any desired links if that is preferrable.

I responded thus:

I might well agree with you when you write that “I thought that it needed to be seen rather than buried somewhere in an archive.” The appropriate way to deal with that perception is to contact the copyright holder of the work and propose to put it online. To which the copyright holder may or may not agree. Republishing it without permission is presumptuous, to say the least.

That’s also the only legal way to publish it. What you’ve done is clear violation of copyright — and I suspect that much if not all of the content of your blog, images no less than text, appears there illegally. This reflects a bizarre sense of entitlement to which I don’t want to contribute in any way. So take my essay down immediately.

What will happen to you and the blog is that you’ll run into someone not nearly as generous as me, who will hit you with a suit under the Digital Millennium Copyright Act, which makes you vulnerable to fines of $250K per infraction. They’ll shut you down, and do you real financial harm, whereas I’ll just retrieve my essay and caution you to respect the legal IP rights of my colleagues in the field by securing permissions before you put anyone’s materials online.

And Mr. Rickard replied:

Allan,  I sincerely appreciate your concerns and will delete your piece ASAP.

In term of the content, it is both joint driven by Author/Photographer and the site and also republishing with links to content authors included – also to Amazon, etc. A large portion of the authors and photographers are working with me directly (Robert Hirsch, Shelby Adams, Tanyth Berkeley, Gil Blank, Danny Lyon, Roswell Angier, Todd Hido, JH Engstrom, Hally Pancer, Pieter Hugo, etc) and many are not. The site at its core is a resource for the entire photographic community and also and an educational vehicle so I have approached it as such and consequently have been more liberal then if a commercial venture – that would of course necessitate a different and financially driven arrangement. I view this site and it’s contribution as a win-win for most of the photographers and content authors and clearly for the photographic community as a whole. Honestly, all but a few individuals have seen it that way. I think that the foundational contributors (”founding fathers”) to photography as a medium need to be bridged to the current crop of contemporary artists and that a narrative both visually and content-wise needs to occur. The site and it’s structure are well suited to provide such a bridge albeit, a subjective one and with a sharp eye toward editing.

Hope all is well.

•

Mr. Rickard did indeed delete my text rapidly from his site. So my own complaint is resolved. However, I remain troubled by the “bizarre sense of entitlement” that allows this web publisher to assume that his sense of the importance of making something available to others overrides his legal obligation to respect the laws governing intellectual property. This troubles me especially because it’s self-serving, protestations of creating “a resource for the entire photographic community and also an educational vehicle” notwithstanding. Mr. Rickard is inarguably drawing traffic to his blog by posting pirated content there. He’s also using the reputations of these unwitting contributors as a tacit endorsement of his blog, since the reasonable inference of any visitor there is that these writers’ and photographers’ works appear at this blog with their makers’ approval. In short, Mr. Rickard derives personal and professional benefit — in the form of web traffic and credibility — from his unauthorized use of content created by and belonging to others.

So I’m concerned for those of my colleagues whose copyrighted works also appear illegally at this blog because they’re among the “many [authors who] are not . . . working with me directly.” Blather about “the foundational contributors (’founding fathers’) to photography as a medium” aside, I don’t find it an honor to have someone heist my IP — and most of my colleagues feel the same. Generally speaking, we prefer to receive formal written requests for such usages, and to make our own decisions regarding where and when to put it online. That’s a basic professional courtesy in the publishing world, to which Mr. Rickard appears oblivious.

Let me be blunt about this: Copyright violation and other infringement of IP rights is never — I repeat, never — ”a win-win for  . . . photographers and content authors and clearly for the photographic community as a whole.” It’s theft: rude, arrogant, selfish, and unjustifiable. It sets a bad precedent generally; moreover, in the case of a given individual, not pursuing such infringement can void protection of one’s copyright at a later date.

As a freelance creator of intellectual property I oppose violation of my own copyright and that of others when it’s committed by someone running a commercial emterprise whose motives are clearly venal, as in the case of the Paul Kopeikin Gallery. I oppose it no less when the perpetrator claims altruistic motives, marveling as always at the selflessness with which such noble souls sacrifice others for their cause.

So I consider Mr. Rickard a thief, just as I consider Paul Kopeikin a thief. Both stole my work. I don’t see any difference between them, despite the fact that Mr. Rickard appears to mean well in terms of the overall purpose of his blog.

I forced Kopeikin to remove from his website dozens of essays (all of them pirated) by some three dozen other authors. I hope Mr. Rickard has the decency to strip out all content from his site not specifically licensed to him by the copyright holders. I hope my colleagues from whom he’s boosted content, writers and photographers alike, demand that their work gets removed from his blog. And I hope the photography community lets this publisher know, in no uncertain terms, that they disapprove of this “service” provided by him at the expense of others. To send Mr. Rickard your opinion, click here.

Once again, I say to you: If you have work in either the U.S. or European Polaroid Collections, want to prevent the destruction of this world-famous archive via sale of its individual works at auction, and want to establish your claim to ownership of works you deposited in that collection on long-term loan or assert ongoing rights to access them, the time to act is now. Please read on, as there’s new cause for hope in this situation.

U.S. Bankruptcy Court Seal

In “Guest Post 5: Federal Judge Sam Joyner on Polaroid,” just posted today (September 15, 2009), U.S. Magistrate Judge Sam A. Joyner provides a cogent and extremely timely analysis of the court decisions from 2002 (Delaware) and 2009 (Minnesota). He concludes that both decisions constituted miscarriages of justice, and he recommends a particular course of action to rectify this wrong.

I won’t try to synopsize Judge Joyner’s argument here; his exposition is clear, and free enough of legal jargon that lay persons like myself and this blog’s readers can understand it. I urge you to read it after finishing this quick note from me. I want to thank Judge Joyner for taking the trouble to draft this analysis for Photocritic International, and for producing such a lucid and helpful summary of the situation and recommendation for its resolution.

Based on his considered conclusion that many if not all of the photographers and their estates represented in the Polaroid Collection have ongoing and inalienable rights to those works that two state courts have inappropriately voided, Judge Joyner suggest the following:

1. The identification of parties with standing in this case is imperative. To have standing, and become a plaintiff, such a party must have work in the collection or officially represent the estate of a photographer with work in the collection. You can determine if you or someone you represent has standing by going to Exhibit B in this PDF file.
2. If you have standing (or if you can prove that you have work in the Polaroid Collection but your name does not appear in Exhibit B), gather whatever documentation you have in relation to the sale, barter, donation, or long-term loan of your work to the collection. This includes correspondence, invoices, letters of agreement, contracts, purchase orders, receipts, etc. Click here for a PDF file with samples of such documentation.
3. It will be necessary to file a Motion for Rehearing or Reconsideration of the Minnesota Bankruptcy Court’s August 28 order allowing Sotheby’s to move forward toward a spring 2010 auction of the entire collection. This should be done by a Minnesota lawyer, preferably a bankruptcy lawyer. We have some breathing room here, since such a motion can be filed “within ‘a reasonable time,’ extended in some situations up to one year,” according to Judge Joyner.
4. It may prove possible to find a Minnesota lawyer willing to tackle this task pro bono. I have feelers out on this, but obviously welcome any suggestions from my readers. Volunteer attorneys would receive the thanks of a grateful photo community, of course. I will try to get an estimate of legal fees for this filing. If a pro bono attorney can’t be found, the photographers with standing will have to decide how to handle the legal expense of such a motion.
5. Such a motion could force the Minnesota bankruptcy Court to review and rescind its order approving the dispersal of the collection at auction. Possible outcomes: return to the photographers or their estates of of any works not owned outright by the collection according to the contracts; transfer of the encumbered part of the collection, in toto, to a repository that would accept it while committing itself to respect the contractual rights still held by the photographers.
6. 

   "Rabble-rouser" A. D. Coleman

   I don’t have standing in this case, but will assist in any way I can. This means I can’t become a plaintiff, because, as the Minnesota Court affirmed, I “dont have a dog in this fight,” to use Judge Joyner’s words — I don’t have work in the collection. However, I offer this blog as action central for this struggle (which it’s become, without my planning that): a platform for consciousness-raising and a collecting point for relevant information. I also offer my services as an expert witness in any proceedings that result.

7. Let me know if you have standing in this case (per 1 and 2, above), have documentation of that fact, and would consider becoming a plaintiff in a Motion for Rehearing. You can simply send me an email with that statement and your contact information: adc [AT] photocritic [DOT] com. I’ll maintain a list and make it available to an appropriate attorney when we locate one.
8. Please spread the word. You can forward this post, tell your friends about it via email, and otherwise help notify the art and photography community that all’s not lost.

That’s it for now. Once again, I advise you to read Judge Joyner’s commentary on the case, which I think you’ll find heartening; I certainly do. It truly ain’t over till it’s over. So stay tuned. (For which read: Subscribe.)

— A. D. Coleman

As one of the early subscribers to this blog, Sam has followed my posts on the Minnesota Bankruptcy Court’s hearing concerning the fate of the Polaroid Collection. Disturbed, like many of us, by the outcome, he volunteered to review the various posts and news stories, and the documents I’ve been posting along the way. Below you’ll find his opinion. It’s lengthy, though not particularly technical; I think a lay person can grasp it.

The short version: He’s convinced that the Delaware Bankruptcy Court acted wrongly in 2002 in approving transfer of ownership of the Polaroid Collection “Free of liens  . . . and other encumbrances,” and that the Minnesota Bankruptcy Court this past month acted wrongly in releasing the Polaroid Collection to Sotheby’s for sale. He believes that the photographers do have legal recourse in this situation, and he lays out a proposed course of action for them to follow.

Read on. And then go to my new Urgent Photographer Alert #2 for information on how to proceed.

My thanks to Sam for spending the time necessary to prepare such a thorough analysis, which lays the groundwork for putting a halt to the sale of at least the bulk of the Polaroid Collection. I hope my readers will make their appreciation of his efforts known in the comments they send.

A brief professional bio of Sam Joyner appears at the end of his letter.

— A. D. Coleman

_____________________________

September 15, 2009

Dear Allan:

Congrats to you and others for continuing to pursue what must seem like a Quixotian quest regarding the sale of the Polaroid Collection. The law is rife with pickiness, and for that I feel a professional need to apologize. You have done an amazing job of collecting the important documents and raising the correct issues, both legal and moral, from, as you say, your untutored perspective. There must be a latent lawyer somewhere in your soul — possibly a prior incarnation.

I am looking at this matter out of personal interest — not because you have asked me to (which you have not). This said, our friendship and my tremendous respect for your life’s work in photography criticism is always a part of the picture.

I practiced law for 25 years before assuming the bench as a U.S. Magistrate Judge, seated in Tulsa 15 years ago, retiring January of this year. I have been active in the world of fine-art photography, primarily black and white, for some 20 years and am blessed to show work at the M. A. Doran Gallery, a fine gallery in Tulsa. Over that 20 years I have studied with 15-20 wonderful teachers, one of whom is included in the Polaroid Collection. Personal collecting and an interest in the history of photography adds motivation to determine what is happening in the sale of the Polaroid Collection.

From reviewing the documents, here is my take, divided into relevant facts, substantive legal issues and procedural issues.

RELEVANT FACTS:

1. Contributing photographers typically signed a Polaroid Collection Release form which included the following language: “I hereby grant to Polaroid Corporation and its companies, the worldwide non-exclusive rights for exhibition and editorial (non-commercial) publication purposes of the following images in perpetuity.”

2. Contributing photographers to another project which resulted in work entering the collection typically signed a Photographers Release Agreement. This had several variants, one of which included the following language: “For consideration received, I ______________ (Photographer) hereby grant to Polaroid Corporation the right to republish my image(s), as described below, that were submitted by me to Polaroid Corporation for use in the Test Magazine. I understand that my image(s) will be re-published on the worldwide internet via Polaroid’s Home Page, starting September 5, 1995 through May 1996.”

3. The terms of use for the 20×24 stated that Polaroid will select one of the images for the collection. The document concludes, “Collection images are exclusively used for exhibits and editorial (non-commercial) purposes with Polaroid retaining all rights. The photographer does, however, retain access to his/her images for exhibition and publication purposes.”

4. A copy of a standard purchase order used when a photograph was acquired has been obtained. That purchase order states on its face, “Photographs, for exhibition purposes not publicity. All other rights reserved. To be returned, loaned, to artist at any time upon request for her own personal use.

5. All of the Polaroid assets were sold in a Delaware bankruptcy proceeding in 2002 in which the court entered an order stating that the interests of any third party (which would include the original photographer) is forever barred. The Polaroid Collection was mentioned briefly but not dealt with separately in that proceeding. No notice of this proceeding was given to the original photographers.

6. On August 28, 2009 the Minnesota Bankruptcy Judge entered an order for the sale of the collection and ordered that the interests of anyone (which would include the original photographer) are forever barred. I don’t think individual photographers were given notice of this proceeding.

7. Letters were filed in the Minnesota proceeding by A.D. Coleman, Judy Dater and two other photographers. They were treated as objections to the sale. Polaroid filed a Reply brief on August 27th, the day of the hearing, responding to the letters, in which Polaroid conceded that the photographers retained all copyrights to the images but argued that Polaroid had the right to sell the photographs themselves free and clear of any claims by the photographers.

8. It appears that the restrictive language granting the restrictive license in paragraphs 1-4 above was presented to the court in the Minnesota proceeding in that a sample agreement with the language was attached to the objection letter submitted by Bea Nettles. Unfortunately, Polaroid’s reply brief and the court’s final order did not mention the language or discuss how it would impact the sale. It is my understanding, from those present at and reporting on the hearing, that the language was not fully discussed at the hearing.

SUBSTANTIVE LEGAL ISSUES:

Polaroid’s right to sell the photographs is totally dependent upon the language signed by the parties when they were sold to, donated to and/or bartered with Polaroid. The documents in #1, #2 , #3 and #4 in the facts above consistently state that the images are to be “used for exhibits and (non-commercial) publication purposes.” The 20×24 documents say they may be used exclusively for those purposes. [Note: To view a PDF file of the documents referred to in the preceding paragraphs, click here.]

There is a typical protocol for the donation or sale of artwork, usually involving an invoice, bill of sale, or purchase order. There is no such document in this case stating that the photograph is sold or donated without the limiting license language. There is no document stating that the photographer is transferring all right, title, and interest in the photograph, reserving only the photographer’s copyright interests.

In this case, it appears the parties created a perpetual license for Polaroid to exhibit and publish for non-commercial purposes. They did not have to use that limiting language. But that is the language they chose, and the courts are obligated to enforce that language. The court’s goal should be to carry out the expressed desires of the parties to the contract at the time the contract was executed.

The most disturbing part of the process to me (and the area in which I think the court’s order is most vulnerable) is that Polaroid’s reply brief and the Court’s order never discuss the impact of the license language on Polaroid’s right to sell. They never discuss the contractual language, which is central to the parties’ contracts and to Polaroid’s rights to the collection (unless such discussion was included in verbal pronouncements by the judge at the hearing).

If they had discussed the language, the court should have at least considered the following arguments:

1. THE CONTRACTUAL RIGHTS GRANTED TO POLAROID MAY BE SO PERSONAL TO POLAROID THAT THEY CANNOT BE TRANSFERRED OR ASSIGNED. Most contractual rights owned by a party may be assigned, sold, or transferred to a third party. However, there are some contractual rights that are so personal to the grantee that the grantee cannot sell its rights under the contract. The court should consider whether the parties intended the right to exhibit and publish the image to go to Polaroid only, not to be sold or assigned to third parties. It is possible that Polaroid’s bankruptcy should have caused the images to be returned to the photographer.

2. IF THE COURT FINDS THE LANGUAGE AMBIGUOUS, IT SHOULD LISTEN TO TESTIMONY FROM THE PARTIES TO DETERMINE THEIR ORIGINAL INTENT. Testimony from other institutional collectors may also be relevant to determining the custom of the trade on these issues.

3. THE PURCHASER OF THE PHOTOGRAPHS CAN ONLY ACQUIRE THE RIGHTS THAT POLAROID HAD IN THE PHOTOGRAPHS. In the sales ordered by the bankruptcy court in Delaware in 2002 and in Minnesota in 2009, the purchaser should only be able to acquire the interest in the image that Polaroid had, that being the right to exhibit and publish for non-commercial purposes. There is even an obligation in some documents to return the image to the photographer on loan for exhibit purposes. The 2009 order is very strong in its language that it terminates and bars any claim by any other parties to the photographs. It is possible that the precise language from the documents giving the limited license to Polaroid was not fully brought to the court’s attention.

4. THE SALE OF THE PHOTOGRAPH IS THE USE OF THAT PHOTOGRAPH FOR COMMERCIAL PURPOSES. The language says the photograph can only be used for non-commercial purposes. The sale of the print is obviously using the photograph for commercial purposes. It is using the image to make money from the image, clearly prohibited by the language. Because Polaroid prints are, by definition, one-of-a-kind works, the image cannot be separated from the object.

In summary, I think that the court should have considered the above issues in its order — and it did not. The language from the documents indicates that the court should not have ordered the sale precluding the rights of the photographers clearly set forth in the documents. The above analysis is from reviewing the documents alone. I have done no legal research to determine how other courts have handled similar situations.

PROCEDURAL ISSUES:

REAL PARTY IN INTEREST

There are procedural hurdles to resolve. The biggest hurdle relates to a real party in interest. Any claim in court must be brought by the party that is potentially aggrieved or harmed (normally in the financial sense) by the other party’s actions. As the court found, A.D. Coleman does not have a literal dog in this fight because he did not contribute any of the photographs. Not only is it legally required, but the court will wonder why a substantial number of the other photographers have not joined in the objection.

The biggest elephant missing in the room might seem to be the Ansel Adams Trust or Foundation. Why have they not joined in the objection? Setting aside the question of short deadlines for action on the parts of the photographers and lack of notification to them, the answer would seem to be as follows:

From the historical record, we know that Polaroid prints entered the Polaroid Collection in several different ways. Some were purchased outright, for cash, from photographers, their estates, galleries, or other sources. Some were specifically commissioned and paid for by the Polaroid Corporation under “work made for hire” agreements; for example, this appears to be the case with most if not all of the 600 or so Ansel Adams works in the collection, supplied to the Polaroid Corporation in Adams’s role as a paid consultant testing products and reporting on his results from the late 1940s on.

Assuming that the contracts and letters of agreement relating to these several categories of works acquired for the collection do not contain encumbering or restrictive clauses, as do many of the Polaroid Collection contracts, they may in fact be appropriately released for sale in the present circumstance. The court should determine this by examination of the relevant contracts and letters of agreement covering those purchased or commissioned works.

The third category of works, those of particular concern to us here, are those that entered the collection via a sale, donation, or barter arrangement that prohibited commercial use, reserved for the photographers the right in perpetuity to borrow the works for exhibition and publication purposes, did not specify transfer of ownership, and otherwise contain explicitly or implicitly encumbering language. Here too the court should determine this by examination of the relevant contracts and letters of agreement covering those works, whose sale to buyers not bound by the initial understandings between the Polaroid Corporation and the photographers would in fact constitute breach of contract.

How might photographers who fall into the latter category, and thus have legal standing in this situation, proceed? One way to resolve this problem of “real party in interest” would be to get assignments of the rights of the photographers to one entity or person. That raises lots of other issues. The best resolution, in my opinion, is to get them to join as parties objecting.

DELAWARE 2002 AND MINNESOTA 2009 ORDERS

The other procedural and substantive hurdle is the legal fact the Delaware court in 2002 and the Minnesota court in 2009 entering orders approving the sales and barring any outside claims by anyone.

There are two possible responses to those rulings. The first is to file a notice of appeal of the 2009 ruling. Unfortunately, Rule 8002 sets a 10-day time limit within which to file notice of appeal. The typical appeal time in nonbankruptcy cases is 30 days. Rule 8002(c)(2) says the time may be extended to 30 days EXCEPT in relation to orders for sale of assets. Regardless, a motion to extend the appeal time to 30 days could be filed.

The second option — in my opinion the better option — is to file a Motion for Rehearing or Reconsideration. Both motions could be filed. Bankruptcy Rule 9024 incorporates Federal Rule of Civil Procedure 60, which allows such a motion to be filed within “a reasonable time,” extended in some situations up to one year. The grounds for the Motion for Reconsideration and Motion to Extend the Appeal time should include the following arguments:

1. Continue to argue that even if the sale is valid, the purchaser gets only the rights that Polaroid had, which severely limits the use of those images. The purchaser cannot say the court found those restrictions on use are barred, since the court never mentioned those restrictions in its order. The basis for the motion for rehearing is that the order used stock language in barring the rights of third parties and never entered specific findings of fact and conclusions of law dealing with the language of the license agreements — thus the need for a new hearing to resolve that issue. The bankruptcy judge may welcome the opportunity to discuss the specific language. If you lose at the rehearing on this issue, you could timely appeal to the District Court, which would be heard by different judge.
2. Rule 2002 requires notice in writing of the hearing to all parties in interest. A new hearing is needed with notice to all photographers. Their property rights in the images have been terminated without due-process notice.
3. There is newly discovered evidence that was not presented at the original hearing, which is the language on the various contracts, letters of agreement, and purchase orders.

If the bankruptcy judge overrules your motion for Reconsideration, it is possible you could timely appeal that order. Consultation with a bankruptcy lawyer is needed to ensure compliance with the Bankruptcy Rules.

CONCLUSION:

Obviously the timeline is very short to respond to the August 28^th order. The earlier the described motions get filed the better.

The other issue to resolve is the question of the real party in interest. Which photographers, or their successors, are willing to pursue this matter further?

I share your concern that the original intent of the photographers and Polaroid is not being enforced by the court. Legal analysis is necessarily a bit on the arid side. Don’t let that hide my disappointment that, legally and morally, these issues were not fully discussed. Damage to the photographers involved, and to the fine-art photography world in general, could be immense. As a precedent, this case could have serious impact on how the rights of photographers in other cases are handled.

The number of images in the collection with the restrictive language in their related contracts is not now known. Regardless, there is an altruistic need to preserve the rights of photographers — past, present and future. If we champion this cause, it could impact others. At the very least, it will remind parties to be more aware of the language they use in donating and accepting work.

If I can help further, I am happy to do so.

Sam

_________________________

Biographical Note:

The Honorable Sam A. Joyner

United States Magistrate Judge (Retired)

Judge Sam A. Joyner

The Honorable Sam A. Joyner  was appointed Magistrate Judge of the United States District Court for the Northern District of Oklahoma on June 1, 1995, sitting in Tulsa. Judge Joyner was active on the bench in electronic discovery issues and is the author of the Guidelines for Electronic Discovery currently used in the Northern District. While on the bench he conducted well over 300 mediations.

Judge  Joyner retired from the bench on January 1, 2009.  He is currently available as a mediator, arbitrator and consultant on electronic discovery issues. He earned a  B.A. degree (1963) from George Washington University, Washington, DC and a Juris Doctorate With Honors (1966) and a Master of Liberal Studies (1987) from the University of Oklahoma.

Judge Joyner is a Fellow of the American College of Trial Lawyers, member of the Order of the Coif and the Hudson-Hall-Wheaton chapter of the American Inns of Court. He has taught as  an adjunct professor at the University of Oklahoma College of Law, teaching Professional Responsibility. Prior to becoming a Magistrate Judge in the Northern District, he practiced law for 24 years. He has served as a director of the Federal Magistrate Judge’s Association and a member of the Advisory Committee for the Administrative Office, U.S. Courts.

Judge Joyner served as Editor-in-Chief of the Federal Courts Law Review from 1999 through 2005. See  www.fclr.org. During this tenure he presided over a symposium dedicated to electronic discovery issues and implementation of the new Federal Rules of Civil Procedure on electronic discovery. The symposium generated  excellent articles from academics, judges, and practitioners, and caused the law review to become a seminal resource on electronic discovery. He is a frequent presenter at electronic discovery seminars around the country, including the 2009  ABA White Collar Crime Institute, San Francisco, CA.

Publications include: “Law School and Legal Ethics — A Part of the Illness or the Cure?”, 60  Okla.B.J.743 (1989); “A Planetary Survey of Feminist Jurisprudence: If Men are from Mars and Women are from Venus, Where do Lawyers Come From?”, 33 Tulsa L. Jour.1019 (1998).

He can be reached at samjoyner [AT] mac [DOT] com.

New York Times Magazine, July 5, 2009

The latest advisory from the New York Times to freelance photographers should provide food for thought for all of us concerned about the  function of the photographic image as information and the credibility of the photographer as witness in the Photoshop age.

The reiteration of Times policy apparently came as a result of the hubbub over the disclosure of numerous digital alterations of the images in “Ruins of the Second Gilded Age,” a portfolio of architectural studies by UK photographer Edgar Martins published in the Times Magazine on July 5, with an accompanying slide show on NYTimes.com. (The slideshow has since been taken down.) You’ll find discussion of this at the Times’s own photography blog, Lens. My own comments follow the Times memo. This July 8 article in the online edition of Photo District News includes several of the images and details the digital alterations.

•

From: NYT PACT/SYS/NYTIMES <NYT-PACT@nytimes.com>

Date: September 1, 2009 3:10:45 PM EDT

To: FREELANCEPHOTOGRAPHERS_1@nytimes.com

Subject: New York Times Photo Ethics Policy

TO: ALL FREELANCE PHOTOGRAPHERS

This is a reminder of The Times’s policies on digital manipulation or other alteration of photos.

As you know, under the contract you signed for The Times, you warrant that any photo submitted for publication “will be original and unaltered (unless it is a photo illustration, pre-approved by your editor and fully disclosed in caption information materials).”

The Times takes this obligation very seriously; the integrity of photographs and other material we publish goes to the heart of our credibility as a news organization. The prohibition on unauthorized alteration of photos applies to all sections of the paper, the Magazine and the Web site.

This passage from the newsroom’s “Guidelines on Our Integrity” explains our rules in more detail:

Photography and Images. Images in our pages, in the paper or on the Web, that purport to depict reality must be genuine in every way. No people or objects may be added, rearranged, reversed, distorted or removed from a scene (except for the recognized practice of cropping to omit extraneous outer portions).

Adjustments of color or gray scale should be limited to those minimally necessary for clear and accurate reproduction, analogous to the “burning” and “dodging” that formerly took place in darkroom processing of images. Pictures of news situations must not be posed.

In some sections, and in magazines, where a photograph is used to serve the same purposes as a commissioned drawing or painting – as an illustration of an idea or situation or as a demonstration of how a device works, etc. – it must always be clearly labeled as a photo illustration. This does not apply to portraits or still-lifes (photos of food, shoes, etc.), but it does apply to other kinds of shots in which we have artificially arranged people or things, as well as to collages, montages, and photographs that have been digitally altered.

If you have any questions about what is permissible under the rules, please consult the assigning editor.

Sincerely,

William E. Schmidt

Deputy Managing Editor

The New York Times Newspaper

Division of The New York Times Company

•

This strikes me as clear, straightforward, and unequivocal. Overall, I might add, I think the periodicals sector of the publishing industry has done an admirable job of self-policing in regard to digital alteration of photographs. They’ve achieved this by engaging with the issues early on, articulating sensible “best practices” regulations, revising and updating those as the technologies become more sophisticated, insisting on “truth-in-packaging” labeling of images, and regularly disclosing, apologizing for, and punishing violations of policy.

Most of those breaches get traced to the excesses of photographers (as in the present case) and sometimes art directors, and usually prove themselves one-shot or occasional situations at a given periodical, not recurrent or systemic failures from within the editorial structures or deliberate and consistent deception by picture editors and publishers.

Looking at the images Edgar Martins submitted for publication, I find it surprising that no Times picture editor picked up on the fact that some of the images are obviously composed of two versions of the same exposure, with one side “flopped” to create a mirror effect. If readers could identify this and point it out quickly based on reproductions on paper and small jpegs online, how could the Times picture editors (with access to hi-res digital files of these composites) have missed it?

However, in their defense, Martins’s contract stipulated digitally unaltered images (beyond the minimal tweaking described in the above memo), and he repeatedly asserted to Times staffers — including the writer of the accompanying Times Magazine article, several editors, and the fact checker at the magazine — that his images conformed to those guidelines. Where I come from, we call that lying, when its source is a photographer commissioned to document the real estate bust.

Reading Martins’s own “annotations” of his now-controversial images, it seems clear that he felt free to exercise extreme license in montaging and altering his illustrations, rationalizing this activity with a logic and vocabulary far more commonplace in the discourse around creative photography than in that related to photojournalism and documentary work:

“My intention was to draw on references from Modernist art, thus also alluding to the wider concerns in my work, particularly with respect to the impact of Modernism on the environment.”

“My intention was to mirror the right-hand side of the room on the left-hand side, thus creating two opposing doorways. Joining the two sides also meant correcting the perspective.”

“[T]his image . . . explores an imaginary sense of ‘wholeness’ to the experience of a fragmentary reality.”

“I have always sought to explore multi-layered images. In my view, this is one of the ways in which photography can overcome the single frame’s limitations.”

““Where does one draw a line when seeking to represent but also shape reality? And how does the viewer relate to this?”

“It is not reality which I have sought to ‘manipulate,’ but its image.”

This reads like the kind of self-justifying babble now pandemic in the standard “artist’s statement” as taught in western art schools. (And yes, this form of textual creation is indeed taught to young artists; many art schools and art departments presently have courses in which students learn how to write their artists’ statements — including obligatory “theoretical” aspects thereof — in conformity to the standards of the academic artists on their faculties. Many schools nowadays won’t let students graduate without an acceptably “theorized” artist’s statement.)

Martins has compounded his disgrace by publishing, at his website, an essay in his own defense, “How can I see what I see, until I know what I know?” I consider it a classic of postmodernist bullshit, but — unlike Alan Sokal’s magisterial send-up of pomo jargon, “Transgressing the Boundaries: Toward a Transformative Hermeneutics of Quantum Gravity” — Martins clearly believes his own nonsense. Complete with the mandatory references and footnotes citing Nietszche, Bachelard, Lacan, Barthes, and Sontag, riddled with elementary errors of grammar, syntax, and spelling, it sums up his position neatly in these words:

“It is my view that there was a clear misunderstanding concerning the values and rights associated to the creative process which made a renown publication like The New York Times Magazine, commission a fine-artist, such as myself, to depict a very specific view of reality without taking all the necessary measures to ensure that I was aware of its journalistic parameters and limits. On the other hand I did not see these as a valid boundary. . . . Whilst I welcome some of the debate that is taking place, I did not envisage that it would be mostly centered on polarities such as ethical/unethical, right/wrong, real/unreal.”

The “clear misunderstanding” appears to me to have occurred entirely within this photographer’s mind. The assumption that the Times somehow failed to provide him with a tutorial more precise than its readily available policies is a blatant attempt on Martins’s part to avoid responsibility for his actions.

Either Martins is excruciatingly naïve and disingenuous (not to mention remarkably uninformed regarding guidelines for newspaper publication of photographic images nowadays), or he acted in extreme bad faith by submitting this work to the Times without including the above annotations or defining his posture in relation to direct photographic seeing — the enunciation of which, I suspect, would have lost him the assignment, and thus the handsome fee it brought him.

By any standard, these images constitute not photographs but photo-illustrations, and should never be presented in any context where they could get construed otherwise. The lesson to learn here isn’t that the public should distrust the news media in general, or photojournalists and their picture editors in particular, any more than they already do — and I do advocate a healthy level of skepticism in regard to the media as a given of informed citizenship. The lesson is that picture editors and publishers working in the territory of informationally oriented imagery (press photography, photojournalism, and documentary) should beware of any photographer whose academic certification comes from an art school, perhaps especially the Royal College of Art in London, where the Portuguese-born Martins got his MA in Photography and Fine Art. Such alumni are simply not to be trusted in the insufficiently “theorized” and simplistically “problematized” environment of newspapers and news magazines produced for the general public.

Can’t wait to see how the Royal College of Art responds to the professional behavior of its distinguished graduate. That would include people like Olivier Richon (head of the RCA Photo Department), Peter Kennard, and Susan Butler. Will they stand behind him or distance themselves from him? Will they embrace his contribution (imagistic and textual) to “the discourse around photography,” or refuse to accept any responsibility for the real-world consequences of their teachings in at least one instance?

We’ll see. This blog is of course open to their comments, and Martins’s — and yours, my readers, as always.