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Monday, 08 September 2014

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This is where the Maier saga finally transforms into modern day, capitalist horror story via hostile takeover courtesy of none other than that classic 19th century villain reassuming his rightful position as 21st century scum of the earth. Enter (the oh so appropriately named) Mr. Deal, lawyer and leech of the lowest order, crawling in after the fact, seeking whatever crumbs he can wrest free and acquire.

In truth, it was the one and only factor that has been missing from this fairy tale of art and longing- up until now we haven't had a real villain, a true foil to Maier's innocence and Maloof's quest to anoint her. The stage is set, the final act has commenced, as BS writ large strides in demanding its cut of money and notoriety. This chapter will only add to the legend; unfortunately, when lawyers ride in on the back of the law, the conclusion can be anything but happy.

The funny thing about this is that without Maloof and the others profiting from Maier's work, there would be no awareness of it, it would therefore have no market value, and the existence of distant blood relatives who never even knew her would be completely irrelevant. The publication of Maier's work, despite making money, has been a great service to the public. Maloof has even made a more than good-faith effort to locate her nearest relative and make arrangements with him. For this lawyer to muddy up the waters this way with another relative just strikes me as the slimiest sort of ambulance-chasing. Deal's protestations of his noble motives are simply not convincing.

Yes, I read the story in the NYT last week. I must admit that I've been fearing something like this for quite a while. It greatly saddens me that such a grab now seems to be in progress. John Maloof and Jeff Goldstein saved Vivian's work from the city dump and have worked tirelessly and very thoughtfully to reveal this wonderful work to the world.

Yes, this is a sad moment indeed.

Every system has failure modes, and Mr. Deal seems to be a human embodiment of the failure mode of our current copyright system. I am not a lawyer or a policymaker, so I do not have a brilliant alternative to offer; I can only note that this suit seems to benefit one lawyer and one putative heir at the expense of pretty much the rest of humanity, and that a system that allows such a thing might stand for a bit of revision.

However one might feel about John Maloof et al, and legal rights aside, I have a hard time understanding how this "very, very surprised" Frenchman who did not even know he was related to Vivian Maier is more deserving of the profits that someone who discovered the work, developed it, publicized, etc.

Does this mean I have to return the print I bought last year:)

Something tells me Ms. Maier would have preferred her negatives remained in a box under the bed.

Personally, I have little sympathy for the Frenchman, even if he does turn out to be the legal heir. His only link to Maier or her work is a genealogical fluke. Had he taken possession of Maier's negatives at the time of her death, how likely is it that he would have appreciated their artistic worth and shared them with the world? A pox on these lawyers.

Simply terrible, considering Maloof seems to have done his due diligence on the matter. Hopefully the case is over quickly, and in his favor.

A perverse copyright-related note: If she would have published some of these images before 1978 but not renewed copyright, they would be in the public domain. But because they were created before then, but not published until after 1978, they are under copyright for at least 70 years from the date of first publication.

Whatever happens in this lawsuit, there is no happy ending for Vivian Maier, who died penniless and unrecognized. The only people who will benefit are a few men who either barely knew her or never knew her at all. RIP Vivian.

Mike:

I totally agree that the important thing is the work itself. I've had a chance to see some prints (Maloof negatives) in a gallery in Santa Fe, and they were sensitively done - well printed, not looking like the printer placed a lot of his or her own interpretation on them.

I also had a chance to see 'Finding Vivian Maier', a fascinating and well-made documentary, in a wonderful venue - the Rio Theater in Monte Rio, CA. Check the wikipedia entry for "Rio Theater (Monte Rio).

Steve

If the heirs want to participate in the profits they should cover the cost to archive and promote the work, Mr. Maloof having done his "due diligence" should send an Invoice for several years work forthwith.

It is only fair Mr. Deal.

It seems that Lawyer Deal decided it was easier to chase heirs than ambulances.

I think it's ironic that the heirs may own the copyrights, but Maloof and Goldstein own the negatives. It's going to be darn hard to make prints without them.

Ya know... I wondered about that. Although I don't believe that an 'heir' should automatically receive rights to the creations of a relative he/she never knew and wasn't named in a will as the heir to those rights, law is a weird and complex thing. That whole issue might have played out in the "lost Ansel Adams negatives" had they not been determined to be by 'Uncle Earl'. Even so I suppose the niece could have sued for possession. I have a book of Vivian Mayer's work on order that hasn't been released. I suppose this means that won't happen.

« "The funny thing about this is that without Maloof and the others profiting from Maier's work, there would be no awareness of it... »

true, but without everyone that helped Maloof with assessment (on Flickr, and beyond), and others involved, then he may have been stuck with a bunch of negatives. the declaration that a CEO, like Steve Jobs, saves a corporation has merit, but to think that otherwise it would be worthless... well, that is a false dichotomy.

this saga is quite interesting, for it is the first major posthumous find in the age of the Internets and the newly minted experts of the Internets.

that the photos are to be withdrawn from the public is a very unfortunate turn of events, regardless of the merits that each interested party may have. this kind of debate and exposure educates in all manners of discoveries.

This is the classic case of a ambulance chasing lawyer who hopes to make money by using never before heard of relatives (which in turn had never heard of their relative Vivian), to blackmail the holders of Maier's product. I know copyright survives after the death of the holder but should this transfer to distant relatives who she didn't know?

One wonders what Vivian Maier might make of all this furore. She seems to have been an intensely private individual who chose not to share her work. Perhaps she'd feel honoured to be so well received, perhaps horrified to see her work commandeered by strangers, however well intended. Of course it's all speculation now but I can't help feeling uneasy that since she never, as far as I know, sought attention for her work that she might see it's exposure to public scrutiny as some sort of intrusion. In a perverse way she might even welcome the legal shenanigans that unfortunately threaten to tie up her images for the foreseeable future. For myself, I enjoy and admire her work. I only hope she doesn't mind.

So the men who spent all their time and effort letting the world know about her work are not entitled to compensation, but a obscure "relative" (hey, we are all relatives to everyone else if we go back far enough) is entitled to his "share". Oh, and of course, the lawyer Deal will get his share as well, and let me guess, this will be bigger than that for everyone else put together. This is ludicrous. Tony Soprano would have a good solution to this situation.

I wonder if Vivian ever registered any her work at the copyright office? If she did not how can any lawyer claim copyright infringement? I kinda doubt she even knew of such a thing from what I have read about her.

If someone uses a picture I post on an internet forum & I failed to register it, I don't stand much of a chance in court at all of recovering any damages on unregistered work.

Miss Maier is dead, with no apparent will or copyright registrations.....Sigh... David Deal is one bad deal for sure.

I understand that the Lomography people are about to announce a herringbone covered twin lens that they're gonna call the "Viv". As to the question of whose gonna or who should profit most from this situation, how much do you really think it matters ? From what I can tell if she had been more on top of her "end game" we wouldn't be having this conversation . . . . in a sense we're all taking advantage of her by argueably going against what she would have wanted ..... I think all this chit chat is just more chit chat that avoids more fundamental issues . .. . . . .

It's so wonderful that Mr. Deal (you can't make that up can you?) has been able to locate another family member. A first cousin once removed who probably knows nothing about Maier, is incapable of managing the copyright, etc. True justice (american style) will be served and Mr. Deal can collect a fat fee for his honourable efforts.

It would seem that the issue is not Ms. Maier's heirs but rather who holds copyright on abandoned property. In the meantime do I put my three Maier books in a vault?

Perhaps even more interesting is both laughing heirs (the unknown one that Maloof has worked with and Mr Baille as proposed by Mr Deal) are first cousins so have the same cosanguinity to Ms Maier.

e.g. http://thismatter.com/money/wills-estates-trusts/intestate-distribution-to-ancestors-and-collaterals.htm

IANAL but it seems more likey to split the control of Maier copyright in two i.e. they both share the estate unless there is another tie breaker involved. Without knowing the family tree or Maloof's heir that makes it difficult to say which one might win sole control.

This could get interesting before it ends.

Apologies to all lawyers and architects reading this in advance (there are good ones, by that I mean ones with a heart and a soul) but I pretty much hate lawyers followed closely by architects. Yeah it's a generalization but I could tell you some true stories that would have your hair standing on end and blood squirting out of your eyes. Thirty years in the building trades will skew your thinking.

The owners of VM's negs, prints, etc have done a respectful, honest job of handling her legacy in my opinion. There are arguments about someone other than the artist deciding what appears in books, exhibits etc. (is this REALLY her, her vision, what she would want us to see etc) but there were enough prints and contact sheets from what I understand to give them a sense of Ms. Maier. Arguments hell, there was just a major dust up on RFF over the question of whether Vivian Maier was overrated that resulted in a deleted thread and members cancelling their accounts and leaving.

I am an admirer of her work and am really sad to see this happening. The lawyer is doing this for purely altruistic reasons. Sure, yup, uh huh.

As an adopted person, I think that there are ties far stronger than blood that makes a family and if Maloof isn't family, then no one is.

Sad and disturbing, but I guess "the blood was in the water" as they say in the US legal world. Anyhow, it's one more reason to click those "Buy Now" links on Amazon for the books, et al.

The interesting thing is that the *ownership* of the negatives are not (much) in doubt since it was a non-payment of storage units sales. So Maloof et al do own the negatives. They do not own the copyright of the images per se. What this means is that these "heirs" and David "Nice Ambulance" Deal might not get anything either if the owners of the negatives say "screw you, go chase another ambulance."

I wonder about the books. Would they need to be recalled also?

Maloof and the others obviously, clearly, indisputably, put their hearts and souls and a lot of their money into the abandoned, then found work of Vivian Maier. Their efforts have brought the work of this wonderful photographer to light for all of us and the world has indeed been made better for all their hard work.

Those negatives didn't print and promote themselves, nor did some obscure French retired civil servant make the necessary effort to bring this work to light! And on top of all that, Maloof did indeed diligently seek out (and compensate) one of Vivian's obscure heirs, as his personal sense of integrity dictated.

The possibility that they might eventually profit in some way - or hey, even if they were to get rich, which is doubtful - is nothing more than a just and fair reward for their hard work. That's not quite the same thing as surreptitiously taking advantage of some deserving "heir" to whom bequests and promises had been made, who understood and was willing to pursue the same paths Maloof et. al. have taken, and so forth. Not even close.

These previously unknown "heirs" that this scab lawyer Deal has so diligently tracked down would likely not have made anything near the immense efforts that Maloof and Goldstein have made and it's their efforts that have not only brought Maier's work into the light, but also made it profitable. It's not like it was a big 'ol treasure chest of gold Spanish Dubloons or diamonds in that storage locker that could simply be exchanged into a fortune in cold hard cash, which is evidently what this idoit lawyer is picturing.

Shame on Deal for so thoroughly screwing up such a good thing, as only a morally ambiguous, greed stricken, ambulance chasing lawyer can!

I vote for a Kickstarter campaign called "Give Vivian Maier Back to the Public," from which a healthy one-time lump sum would be paid to the "very surprised cousin." In return for that money, he would assign any claims of copyright of her photos to those who saved them from the dumpster.

The lawyer who is trying to position himself at the center of this wouldn't receive a penny, of course, but everyone else would win.

Lawyer Deal is referred to by the NY Times as a former commercial photogapher. I wonder, does anyone know anything about his past? Was he a failed commercial photographer? Why did he give it up? What (if anything) beyond the money to be had by suing was his motivation for raising the question? If I understand the law (and I am NOT a lawer), since her photos were never copywrited, there is no copywrite to own or infringe. If so, what is Deal's claim? Like death and taxes, lawyers are with us always - and many aren't in it for justice,

Copyright technical neepery -- if the work had been published and in copyright at the time of the switchover to the life+whatever (first 50) scheme in 1978, they would still be in copyright. To fall into the public domain they would have had to be published before 1950 (so the first 28-year term would have expired by 1978) and then not been renewed.

"As an adopted person, I think that there are ties far stronger than blood that makes a family and if Maloof isn't family, then no one is.

Posted by: Maggie Osterberg | Monday, 08 September 2014 at 04:12 PM"


This.

Well Darn. I had the new book on order since June and it was coming out about the first week of November, after a couple release-date delays. I hope it still appears. As for a Special Lomography TLR called "the Viv", phooey. It will never be a match to her Rolleiflex model! :-)

Couldn't help but tinker with the old Orwell trope and imagine lawyers pulled by the smell of money "like blue-bottles to a dead cat."

I'm not ready to take sides on this issue but I must say the term "previously unknown heir" raises my suspicions. Previous to what and unknown to whom?

What a shame. I think 50 years after death is a bit much anyway. 21 years seems much fairer. Any dependent children should be on their own by 21. And I believe copyright should be registered to even have any protection after death. The heir of the copyright should be able to re-register it as their own, thereby extending the valuable IP for their lifetime, and the lifetime of any heirs who choose to maintain it. As for lawyers, here in the US we have far too many. In some countries, Japan I've heard, the number of lawyers is strictly limited. :)

Poor Vivian...

...not much to say here without piling on, but put me in the plus file on the "lawyer hate". I also read the NYT article last week and have to say that the lawyer just comes across as another ambulance chaser trolling for situations he can insert himself into and get a payday from, regardless of what he says are his motivations. I have never found any lawyer to be concerned over the "rights" of long forgotten family heirs, over their rights to a better paycheck. My wish for "Mr. Deal", is that he spends tons of his own money pursuing this, and then gets no where with it, and he has to file for bankruptcy. Ahhh, that would be great!

This is a suggestion for your "Random Excellence" series:

https://www.flickr.com/photos/manifestedesyeux/

Best.

Rubén Osuna

Gordon Lewis' comment is on the money. This is a dispute between parties who each assert ownership of copyright of photographs by a woman who died penniless and unknown. There's no denying the motivation of Mr. Deal and the Surprised Frenchman, but let's not be naive. No one involved is altruistic. The owners of the negatives published the photographs to make money. Vivian Maier's photographs cannot be given back to the public. The public never owned them.

Also, a number of comments contain speculation about the niceties of copyright law, which is beyond pointless.

maloof and the other dilletantes don't deserve any sympathy. They are profiteers, plain and simple. If they were in it for altruistic reasons, they would have donated the materials to the Library of Congress and put things in the public domain as soon as possible. All they have done is rush to profit as soon as they drummed up interest online.

They are in it for the money, no question. It's about time someone took them to task for their presumptuous tactics of monetizing this work.

There is another lawsuit about Meier's work that appears not to have been noticed. The third buyer of her negatives, Slattery, also bought some prints from the storage locker. A collection of them was displayed and attempted to be sold at a Chicago gallery in the $5-6K per print range (reportedly only two were sold). Slattery has sued the gallery claiming that it damaged the remaining 50+ prints and devalued them in the process. He is claiming $2 million.

Ironically Slattery may have the best set of rights out of any of the three buyers, since he purchased not only negatives but prints as well. He is free to sell the prints at whatever the market bears regardless whether Deal's client ultimately wins the copyright battle.

I don't get the outrage at Deal, BTW. The NYT article makes clear that Maloof had made a financial deal with the person he thought had the right to sell him the Vivian Meier copyrights. Maloof, represented by lawyers, understood that without the copyright rights he could not commercialize the work. Maloof knew about Deals' client in France but, erroneously or not (that is the issue to be decided) did not seek to get his rights along with the man he thought held them. Now Deal is saying wait a minute, you made a deal with the wrong guy. Until the identity of who is "right guy" is resolved by the court case, no one can say with any degree of assurance that they can license Meier's copyrighted images.

I can't help but feel sadness. For the greed of lawyers and these alleged relatives who never knew her, never cared about her, never noted whether she lived or died, the rest of us who admire and celebrate her clandestine talent will have to do without.

Were it not for John Maloof and the other owners, who have invested money, time, and untiring effort to recognize this reclusive talent and bring her to the world, the work would likely have long ago been destroyed and forgotten. And that would be near to criminal in my view.

What have I learned from this travesty? All of my photographic works and copyrights are now included in the paperwork describing what will happen with my belongings when I pass away. I will not allow it to fall into the hands of vulpine family members who never cared whether I was alive or dead—those amongst my family and friends who enjoyed, celebrated it with me will get it. And they will be empowered to do with it as they feel is right, and reap whatever benefits (if any ... I don't expect to be a celebrity of any sort) for their efforts.

Sad, sad, sad..

Well this is awkward..
Don't get me wrong, I think the current state of copyright is perverted. However, I appreciate the stance of creatives who assert their right. All these copyright warnings you see everywhere usually promise "prosecution to the full extent of the law"? Well, this is another one. As copyright claims go, I have seen far worse.

Many of TOP's readers are themselves creatives and root for the creator when someone's work is perceived to be ripped off: I remember the Jay Maisel/Kind of Bloop case. Arguments usually boil down to "Dura lex, sed lex".

But you can't have it both ways, dear commenters. The perverse copyright term was created for one sole purpose: to provide income to the heirs of the copyright holders. Until 70 years after the creator has died, the heirs hold very strong rights. And just because you don't think Vivian Maier's heirs deserve anything, you blame the lawyers? Tsk, tsk.

Personally I am appalled by mr Maloof and his ilk to try locking up work - that they had no business in creating - by the vehicle of copyright. I do not think it is necessary: control of the physical negatives gives them enough of a head start to recoup any cost incurred in curating Maier's work.

But given that they have chosen this path, I think the people trying to cash in on a treasure that could be available to anyone deserve every pitfall in their path. If you want to have the legal monopoly over this work, you must acquire this legally. Dura lex, sed lex. The villain that is mr Deal may very well be created by mr Maloof himself -and that makes for two villains in my book.

Another thing that strikes me is the assertion that mr.Maloof should be off the hook because he practiced due diligence, in finding an undisclosed heir according to some comments. One of the reasons many "small time" artists were opposed to Orphan Works legislation was that it would allow big corporations to be off the hook after doing some nominal research to (not) find the holder of the copyright. Claiming to be unable to find the rights holder, they would be free to make millions off of the work, and the rights holder ( in many cases, the heirs of the creator) would be left holding the bag. It is not clear to me whether anyone condemning mr. Deal was also opposed to orphan works legislation. To keep with the Orwell terminology, that would be a nice example of doublethink.

Just saw the movie and respect Maloof a heck of a lot for what he's done there and the love he's shown for the art.. Abandoned property and ambulance chasers... shame on Mr Deal. Perhaps the fairest thing would be for the Art Institute of Chicago to be named as trustee for the Estate and for the Estate to provide fair compensation to Mr Maloof for his work and effort, but devolve the majority of proceeds for print sales to the AIoC itself.
Greed... where does Dante put those guys in helll, I need to re-check.

Look on the bright side, if this had happened in Brazil, it would take the judge twenty years to reach a verdict. Lawyers, lawyers. As I always say - lawyers are like women - hard to live with them, but impossible to live without them. I'm sure any female readers could say the same about men.

vu de France :

http://france3-regions.francetvinfo.fr/provence-alpes/2014/09/10/un-retraite-de-gap-heritier-de-la-photographe-americaine-vivian-maier-547632.html

To respond to Sterling: "For example, if John Maloof died tomorrow, his estate would include any interest he holds in the photos. Where would that interest end up? Absent some explicit agreement, it would go to his heirs."

Don't confuse the ownership of physical objects and copyright.

If John Maloof died tomorrow his estate would contain the Vivian Maier negatives that he owns so his heirs would own those negatives and new prints (assuming he hasn't placed them in a trust).

His heirs would be able to sell the negatives if they wished.

But to make derivative use of those negatives, for example, by selling new prints or books would require a license from the current copyright holder i.e. one or more of Vivian Maier's heirs.

It all depends upon how the contract that Maloof has with VM's heir is written to license the copyright. Does it enable Maloof personally or Maloof and his assignees or Maloof and his heirs or a company created by Maloof to make use of the images? I don't know. I've not seen the agreement. None of us have.

For those wondering about a "recall of books". A recall is possible but it is a very seldom used remedy in copyright infringement cases. It does occur more in other intellectual property lawsuits for trademark infringement and unfair competition. But that's a long way down the line: it would require Maloof not to come to an agreement with whichever heir (or heirs) Illinois finds to have inherited the Maier estate and then for the estate to pursue a copyright infringement case in court. I don't really see that happening. It would seem in the best interests of all parties to cooperate for maximum benefit. The heirs benefit from Maloof's work and so can he. One can only hope they will see sense.

One thing that stands out on this set of comments is quite a few people don't understand copyright law and don't like lawyers either. But if you read what Deal says in the NYT article it doesn't seem that he's in it for the money (as many here have assumed) but has some of the same feeling as come commentators here. For the moment, I'll take that at face value.

In the meantime we wait for the State of Illinois to determine the rightful heir(s) as is their job. And you do need lawyers for that.

Just an FYI, copyright exists so that the person who actually created the work, and their heirs, may profit from their creative abilities. As far as I'm concerned, it could remain in effect for ever. Why anyone else should be allowed to profit from someone else's work, even after that person dies, is beyond me. Especially in cases of art and literature. The laxness I hear about this subject, is mostly from the modern generations that have had years of working with the internet in the 'free-to-steal' market, even tho it isn't. You know what? Invent your own stuff, or pay for the stuff that someone else has the talent to do.

At the dawn of the internet years, I was sent to a copyright class by my corporation. This was a very advanced degree course where there was a lot of information and give-and-take. I finally had to stand up close to the first break, and say something, when I realized that the majority of the people in the class, including many in business suits, were there to discover how much intellectual property they could steal from someone else without getting in trouble (the answer is zero, btw). During the break the instructor came over to me and thanked me for saying something, and also said she couldn't believe the class was ending up like this, either.

The issue should be whether someone who is an 'un-involved heir', should be allowed to profit from copyright. In this case, this is an obvious ambulance chaser looking for a payout, and the law that should be written, should outline how many generations with no contact or concern, and how many 'jumps' away from the direct lineage, should be allowed, to retain participation. Lawyers like this have no provable morals or ethics, just the farthest reaches of the law to support them even spending the time looking for this, otherwise they wouldn't have bothered. Let's write the law to eliminate these leeches.

The lawyer says he cares about the 'unknown heir', but how sad a person is it who reads about Vivian Maier and says: "...gee, I wonder if all the heirs have been found, and maybe I should represent them?"

Regrettably, mr. Kwas puts forth an argument which is at odds with US Constitutional law and current global practice which is heard all too often. Please forgive me for pointing out that the US constitution explicitly states that Congress's authority to legislate copyrights is only given for a limited time, to promote the progress of the sciences and the useful arts. The current term for copyright (decades after the death of the author) is a European remnant, where the "Dignity of the Artist/Sweat of the Brow" argument is dominant until this day. It is still part of European copyright law.

If you're still interested at this point, it may be nice to know that "promoting the progress" is a goal which can only be reached if copyright is granted for a limited time. This is because we all stand on the shoulders of giants: if a work does never enter the public domain, culture would probably grind to a halt because _everything_ is a remix.

Don't believe that "everything is a remix"? Maybe anecdotal evidence could be found in this video, which I leave here for your amusement: http://youtu.be/5pidokakU4I (Axis of Awesome, "4 chords").

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