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Monday, 09 May 2016

Comments

I found Kevin's article really clear and illuminating.

Dear Kevin,

Damn, but you're good!

pax / Ctein

Hmmmm - I agree with "The fact that the owners of the prints and negatives and the estate have come to an agreement is good news for everyone." but not with "There are problems with current copyright law, but this case doesn't exhibit any of them." because of " copyrights go to the estate and will last for 70 years after Maier's death".

Look, the point of copyright law is to encourage publishing, to have work that would not otherwise exist (or only exist privately) to be available. That's the basic rationale. Yet there was a real threat on the table that these might have been withdrawn from publication. As in, no longer being made public. That that does not appear to be the outcome doesn't make this an example of not-broken copyright law.


It seems to me that current copyright law, while clear, is wrong headed.

I have bought several low $ pieces of art at co-op galleries over the last several years, including work by friends.

In no case was the gallery apparently aware of how copyright law works. No documents to sell the copyright with the physical work were available, nor did the gallery folks know what I was talking about.

In the case of my friend Bob Whitmire's gorgeous prints, things are as they should be. He owns the rights and I own prints for my own enjoyment.

In the case of Marilyn's small oil painting, I thing it's wrong. I purchased the original work and there are no copies, with her or anywhere. I believe that, absent any documentation to the contrary, original art works should carry with purchase of the physical object, the IP rights.

In other words, unless the sale includes my agreement that I am not buying the IP rights, they are mine. Of course, the vast majority of these modest sales at co-ops, small galleries, house and garage sales, etc. won't lead to any trouble.

But one of these days, such an object will end up being worth a great deal of money. The original intent of buyer and seller will be overturned by the law.

Presumption in law that the vast majority of such sales include the IP rights, would legitimize millions of transactions. Only the relative few that involve larger values and knowledgeable sellers who have the buyer sign the appropriate document would not include IP rights. It's a cleaner approach.

Digital photographs would likely be an exception to the above, as a unique, physical original doesn't exist.

Just sayin'

While Kevin's explanation is quite good, the tragedy in all this is still the fact that that all of this would be quite moot if John and Jeff had not found the work and brought it to the world's attention. It is most likely that all of her work would have ended up in a landfill and the legal heirs, county and lawyers would be none the wiser to the existence of her work.

In my opinion as stated couple of days ago someone needs to broker this deal. The heirs deserve their share as does Maloof. The broker/arbitrator 10%. Win Win Win.....Z

Thanks, Kevin. Great explanation!

One thing that I'm unclear of, did Vivian Maier ever actually copyright her pictures? It seems to me that she was taking them for her own enjoyment, and stashing them away in a storage unit. I have a number of boxes of negatives that I have taken for my own enjoyment, stashed away. Are they automatically copyrighted?

"All works published in the United States before 1923 are in the public domain. Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years."

You think that's not ridiculous?

As of the 1978 copyright change (when we joined the Berne convention, and went to the insane "life plus 50" copyright term, since extended even more insanely to "life plus 70"), yes, work is automatically copyright the moment it is first "fixed in tangible form". And that explicitly includes digital, that got settled some time ago.

@Keith, Yes, the point of copyright law is to encourage publishing, but that means publishing by the rightful owner, not by anyone who happens to get their hands on a photograph. If the copyright law permitted publishing by anyone who happens to get their hands on a photograph, the effect would be to discourage publishing by authors. Authors would be very tight about their work if anyone who got it could then re-publish and profit from it because copyright law encouraged publishing. So copyright law is working just fine by encouraging publishing by rightful owners and by no one else.

The point of copyright law isn't just to make work "available" but also to control who publishes it so that the author (or their estate) can profit from it, thus giving them a financial incentive to publish.

Anyway, I applaud Mr. Maloof for his efforts in bringing this work to the public. It could all have disappeared in a trash bin. This deal should straighten the path forward.

There is, of course, a difference between the administration of the law (the discovery of the heirs, the proper application of the current copyright law, the determination of who owns the physical property) and the content of the law. A lot of people think that the copyright law, as it is now, was designed by indebted politicians to protect Disney copyrights to Mickey Mouse and other cartoon characters, and not in any way to really protect authors of original material or to promote publication, as the copyright law supposedly is intended to do. How does delivering money to a large corporation for seventy years after the death of the creator really serve the public interest?

If Maloof rightfully owns the prints and negatives, the copyright is of no value to the estate as they have nothing but the right to stop unauthorized reproduction. Without actual images, they have nothing to capitalize on so a mutual agreement between the parties is the only way forward.

[Of course it has value to the estate! It can earn a royalty on the sales of the prints that Maloof sells. --Mike]

Kevin Purcell writes "... buying prints and negatives doesn't mean the buyer owns the copyright to them" but I think he is blurring the distinction between prints and physical negatives which has now disappeared with digital.
Can anyone give an example where a photographer would sell the sole original negative and not intend to pass the copyright? What would be the point for someone buying the sole original negative without the right to reproduce it?

I guess what is intuitively catching in people's throats is the passing of moral rights to heirs that had no interest in their production. If Vivien herself was still alive, but allowed her neglected photos to be sold by the storage facility, there'd be little dissent. Had she dearly loved children who she would have wanted to benefit from her work, I don't think anyone would have a problem either. However it's the "laughing heirs" who are demanding their share which offends sensibilities... even if they are quite legally justified.
But that's how it is. An obscure heir of Maurice Ravel has been profiting from performances of his music (the Bolero is supposedly performed once every 4 minutes somewhere in the world) until two weeks ago...
There is a theory that the copyright extension to life + 70 years was to protect Walt Disney Corporation, anyone know if that is true?

Clear writing is a pleasure to read. Thanks for the lucid explanation Kevin.

Reading the comments so far, it looks to me as if some doubts and misconceptions about copyright subsist in some readers' minds. Not willing to start a thread or some kind of argument, which would go against TOP's comment guidelines, I ask for permission to reply to some readers. I've been dealing with copyright issues on a professional level for quite some time now, so I think maybe I can be of some help here.

To Roger Engle: copyright does not depend on any formality in order to come to force; it is originated by the simple act of creating, i. e. materializing an idea or concept. The law grants its copyright protection even if the work is not registered, which is to say the author is admitted to prove he (she) is the creator of the work (thus being the legitimate copyright holder) by any lawful means.

To Keith: the point of copyright is to protect the author. His (her) interests would be irreversibly compromised if the purchasers would acquire intellectual property of the works of art they buy. That would mean the authors would be deprived of any income generated by publishing, selling or exhibiting their work. All the money would go directly into the purchasers' pockets. More than unlawful, that would be immoral.

To DD-B: we need to start centering copyright matters on the author, rather than on what the public wants or needs. There are reasons for the work to fall in the public domain 70 years after the author's death. That's in order to protect the author's rights. Con you imagine what it'd be like if anyone could print and sell Robert Capa's photographs at their own will!? Jon Savage, an influential music critic from the UK, wrote once that we live in the 'Age of Plunder', which was made even worse by social networks; allowing authorial rights to decay in a shorter term would make matters much, much worse.

Ah, my favourite curmudgeon-topic!

One thing that is probably not too correct in the featured comment is this:

"Mr. Maloof, by purchasing Vivian Maier's negatives, may have become the legal holder of the monetary rights, but he holds no moral rights over Vivian Maier's photographs."

No, the whole point is that he did NOT get the monetary rights, just ownership of the negatives (which is a property right). It is hardly imaginable that selling the contents of a storage box will entail the transfer of copyright, since this requires a transaction to which at least the holder of the copyright is a party. (Okay, well maybe some storage space owners can make form contracts which provide for this in the future?)

What seems to be forgotten in a lot of the comments is the doctrine of first sale. Once the work is legally sold, the new owner can exploit the work as embodied in the sold copy: he can make it available to the public (that's what a museum is about, people!) or rent it out (that's how Redbox made a DVD lending business). So even if the buyer of the work does not own the copyright, he can exploit the work as embodied in the one copy that he bought. Of course, making new copies off the one copy that you bought is again, a violation of copyright. But that is obviously different.

There is a lot to say against Moose's suggestion that you transfer the copyright WITH the original work. Even if the work is a one-off work, like a painting, I still believe that it is a huge overstretch of the first sale doctrine to grant the buyer the copyright. I mean, the first sale is THE ONLY sale. The buyer may exploit the work all he wants, but I still think that if the artist becomes famous later, further reproductions of the work should benefit her. (In some countries, the creator even benefits of increased resale value, but that is a bit over the top for my own tastes).

Finally, I think that Manuel's assertion that the point of copyright is to protect the author is sort-of true in the continental European copyright tradition, but really runs counter to the common law and the US constitution. However, I can relate to artists that really appreciate the increased protections the Berne convention has granted them. But please don't confuse matters in this way.

As a starting point I find it helpful to think about copyright law (and property law in general) not as a singled unified right ("I own this photograph") but rather as a bundle of rights: the right to possess a print, the right to makes copies of the image, the right to use the image in advertising, the right to alter the image. It's easy to think of examples: "I own a print of this photograph, but the photographer owns the right to make more prints of it" or "the photographer has given me the right to use the photograph in this advertisement, but I cannot sell the New York Times the photograph to illustrate a story on its website ".

The idea that various distinct rights exist regarding the same artistic work and that those rights can be held by different people is the foundation to understanding copyright.

Moral rights are another one of the bundle of rights. Manuel does not describe moral rights as I would. Moral rights are distinct from the right to make copies of a work. They are the rights of the author of the work protect the integrity of the work and to be associated with the work if the author chooses.

Creative works are an expression of the personality of the author. The author is identified with the work. That's why moral rights are protected. Moral rights (in Canada at least) may not be assigned or sold to another party, but they may be waived in whole or in part. So I can’t assign my moral rights in my photographs to you, but I can waive my rights (“you can alter this photograph however you like” or “you don’t need to attribute the photograph to me”).

The seminal Canadian case on moral rights is Snow v Eaton Centre Ltd. The facts are like something out of a law school exam. An artist made a sculpture of geese in flight, which were displayed at a shopping mall. The mall thought it a good idea to put ribbons around the necks of the geese as Christmas decorations. The artist took umbrage at festivization of his sculpture. He sued to prevent what he believed to be a distortion or modification of the sculpture that was prejudicial to his reputation. The court agreed with the sculptor and ordered the mall to remove the ribbons.

@Crabby Umbo "I don't understand why anyone thinks that the originator of intellectual property and their heirs shouldn't have the ability to earn an income off what they've created (and in fact, in 'perpetuity' as far as I'm concerned). Why is this 'insane' or 'ridiculous'?"

Well, because intellectual property is a convention created in the public interest. Giving some benefit to creators and inventors is good because it incentivizes and rewards creation and invention. Allowing their great-great-grandchildren to get fees in perpetuity from others, just allows some people to live off the labour of others without making any contribution of their own. Rather like a feudal society, in fact.

Bob S. wrote: "What seems to be forgotten in a lot of the comments is the doctrine of first sale."

I think this paragraph confuses the idea of the purchaser's right to use a purchased item (such as a photograph, cd, etc.) with intellectual property rights (i.e. copyright). A buyer can use a purchased product for his or her enjoyment and can even lend it to friends, make additional copies for his own use, and can even sell their purchased original product to another buyer. But that buyer obtains no intellectual property rights and cannot reproduce the work for sale. E.g. I can make a duplicate of the cd I buy to listen in my car, but I cannot sell that duplicate to anyone else in any format. I can buy, enjoy and eventually sell an Ansel Adams print, but I cannot make copies and sell the copies.

Bob Sacamano is right. My assertion that "Mr. Maloof, by purchasing Vivian Maier's negatives, may have become the legal holder of the monetary rights" is the unfortunate result of my habit of making successive revisions to what I write. Sometimes some things are left uncorrected and make little sense. Of course Mr Maloof didn't acquire monetary rights over VM's works. What the comment should have said was that he acquired her physical works, thus becoming their legal holder, but not the intellectual property.

Dear Moose,

I fall most firmly on the other side of this. It is a trivial contractual matter to convey the copyright (or any desired subset of those rights) to the buyer of a physical work. If the artist wants to convey those rights to you, they can. For you to assert you should have those rights automatically, with physical purchase, is fundamentally wrong-headed and would, in any case, require a complete reworking of IP law to accommodate. To assert that this is somehow the way it should be is deeply unrealistic.

This is NOT going to get overturned by case law.

~~~~

Dear Crabby,

Ummm, no. What Chris said. That's not subject to opinion or ideology. It's in the Constitution, which specifies that the copyright shall be "for limited Times..."

Copyright does not exist to enrich the creators. The government's interest in the common good is to encourage creation of new work (via copyright and patent). If it weren't for that, it could care less whether the creators are profiting off their work-- the profiting from the work is the means to the end.

~~~~

Dear Richard P.,

Yeah, I know of collectors who collect the "originals" of works, including photographic negatives. It is really no different than wanting to own, say, the original manuscript of some famous book or the original handwritten music of some famous song. And, absent a contract to the effect, in no case does that acquisition entitle the collector to any copyrights.

For that matter, you may recall that I held a sale of my dye transfer matrices, which are the unique printing plates required to make dye transfer prints, along with a proof print that included my printing instructions for those matrices. None of the 160-odd buyers imagined that in any way I was conveying to them the right to PRODUCE prints from these.

pax / Ctein
==========================================
-- Ctein's Online Gallery http://ctein.com
-- Digital Restorations http://photo-repair.com
==========================================

Regarding Crabby Umbo's comment: "I don't understand why anyone thinks that the originator of intellectual property and their heirs shouldn't have the ability to earn an income off what they've created (and in fact, in 'perpetuity' as far as I'm concerned). Why is this 'insane' or 'ridiculous'?"

"The only reason someone would be against this is if they are a 'stealer' of work and want the ability to profit from someones else's intellectual property solely because they bought the physical object."

I think it is important to think about copyright in terms of a balanced benefit to society in general. It is in the interest of the general public to encourage and support creative work by allowing creators (and their heirs) exclusive rights to profit from their work. However, it is also in the best interest of society for those rights to be time-limited, so that others may have the opportunity to do interesting and useful things with older works.

Think of all the variations on Cinderella, and Shakespeare, and Dracula. Some are great, some are terrible, but those works would likely occupy a much narrower, shallower cultural space today if those original works were under copyright forever. I would be interested to see what new adventures Mickey Mouse and Batman might have if any interested person could take a crack at a new interpretation (and hopefully this will happen eventually).

Even simple repackaging can have value. I work in the library/archives field, and there are often great ideas for collections/databases/exhibits/publications/projects that can't be done because permissions could be too expensive to obtain, or it could even be too expensive to simply research the associated rights for collections made up of works by many creators. It's nice that there is a public domain, so that at least projects comprised of older works can be created with limited investment and legal worry.

So, there needs to be a balance time-wise. Personally, I think 70 years after death is excessive.

To Manuel,
One of the reasons I love this website so much is that I learn about so many different topics! I had always assumed that I had to register material for it to be copyrighted. Thank you for the clarification!

Copyright is a fraught issue, and though relatively clear in this case (and thank you to Kevin for his wonderful clarification) it does need updating for the way the world works today. Orphan works, especially, and a default long, long copyright term... but actually I don't want to get into that at all.

I think one thing that really sticks out about this case, and that isn't mentioned here, is David Deal. He "came forward" out of his own "good will" to try to resolve the copyright issues around Vivan Maier's work, and nearly froze up the whole thing. It would have been different if one of the heirs had come forward themselves, but for a lawyer with no personal interest in the case to just show up and start making a fuss... Well, suffice to say I'm sure he won't have to chase any proverbial ambulances for a while after this one.

What's the old joke? It's 95% of lawyers who give the 5% a bad name...

@Manuel
Your distinction between "economic" and "moral rights" is valid, but the moral right of the heirs to the estate would only allow them to veto "distortions" etc. of the author's work, but not its publication by the owner of the economic right.
https://en.wikipedia.org/wiki/Moral_rights
Fritz (who once was a lawyer too)

I think most people would agree with the concepts of copyright when considering the rights of the author/composer/creator of a work. However, it becomes much more of a grey area when it comes to seeing IP as something that is traded. Especially when it is traded as a financial product.

An Australian case a few years back involving the band "Men at Work" and their classic hit "Down Under" (it's second in line after Waltzing Matilda, if Australia ever needs a new national anthem) was one such example. It also touches on the aspect of "quoting". The band was sued for the use of a few bars of what they thought was a traditional folk song which turned out to be written more recently and the royalty rights gifted to the Girl Guides. These rights eventually ended up in the hands of a trader who sued the band.

Sometime after the case, the musician who actually played those few bars was found dead.

I guess IP is often as much about power - Claude Joseph Rouget de Lisle never tried to sue Pyotr Ilyich Tchaikovsky for the use of La Marseillaise in his 1812 Overture, but then the 1812 Overture was a celebration of a Russian military victory over France.

I also have to deal with IP issues on a regular basis in my day job which involves writing engineering reports. The contract commissioning these reports often involves a clause to the effect of "transferring all IP rights upon creation", however, my organisations position is to "grant a licence" or as a minimum "transfer rights upon full payment".

If only copyright was so black & white.

I didn't realize how far back copyright "battles" went in history until I was recently referred to the Battle of Cúl Dreimhne (6th century Ireland, est. 3,000 casualties) https://en.wikipedia.org/wiki/Battle_of_C%C3%BAl_Dreimhne

Dear Ben,

I have trouble seeing what Deal did that was wrong. As inheritance law works today (and I have a lot more problems with it, ideologically, than I do copyright law, but that's another thread), those distant, previously unknown and unknowing heirs ARE entitled to Maier's "intellectual property." This is beyond dispute. It is theirs.

Deal sought them out and informed them. Are you seriously saying that was a bad thing, that it would be more appropriate to keep them ignorant and deprived of the property that is rightfully theirs? I hope not.

What seems to bother you is that Deal will also profit from this. Why not?! He performed a service of value. Why shouldn't be be paid?

If that is somehow unseemly or unethical in some way, the profiting from a useful act, the same could be said of Maloof. Of course, I do not think anything like that. But I don't see how you (or anyone) can condemn Deal and not Maloof.

The problem is not with lawyers, it's with people who somehow imagine the world would run better without them.

pax / Ctein
==========================================
-- Ctein's Online Gallery http://ctein.com
-- Digital Restorations http://photo-repair.com
==========================================

Just a few comments on this interesting topic.

First the statement in the original article by Kevin Purcell gets into estate planning when he states "That's what probate law does. If you don't like it, make a will, or your estate will end up in probate." This is not correct. A will by itself does not avoid probate. The typical avenue to avoid probate is a trust.

Second, I find that most if not all comments focus on the copyright, contract, probate aspects of this matter. These are secondary matters (but important). But I believe the real issue is with the original creator, Vivian Maier. We don't begin to talk of these issues if she had known and appreciated her assets and had made some estate planning. Obviously she knew of the assets but clearly did not appreciate their worth as assets. And as to the "laughable heirs" it seems that they eventually realized and appreciated the value of the assets more than the creator.

Lastly, I have a real problem getting my head around the failure of the artist creator not knowing and appreciating that she had created art. Can it be art if the artist doesn't think it to be art and of being worthy of protection in some fashion? Obviously I don't know all the facts surrounding her situation but the few facts known all indicate that she didn't think highly of her work because if she did she would have done a lot of things differently.

A most interesting topic. And all great comments.

Robert Clamme

Chris and Ctein, et. al.

I certainly 'get it', in terms of copyright, and AN states it correctly in his entry concerning repackaging of public domain material, etc.

BUT, let me say, that there is theory and then there is practice, and my experience in the marketplace of creative media for 40+ years shows me that there are far more 'stealers' looking to make money off the work of others without compensation, than any other good will use of the copyright laws. There will always be people without their own ideas that can finagle or steal intellectual property to repackage and make a profit off of (in fact, this probably is the majority).

If you died without a will, your possessions would go to your heirs, and then if they die, it goes to theirs, etc. Your estate may have changed your heirs lifestyle dramatically, and you could make a case that their heirs are receiving the advantage of this; but we don't parse this out and say they're not entitled to what came from you because it's once removed.

What we're saying here, is that after an arbitrary date, you and your heirs no longer have ownership of what you created, BUT, value still exists; someone else just get's to make profit off of it, not you, so why is that OK (they didn't create it)? There is still profit to be had. A publishing company can take the work of an author 75 years after they died, repackage it, make a profit off of it, and not have to give the estate of the author anything; and yet there is profit to be made based on the quality of the original book.

Knowing people who have been authors and had books published through actual publishers (vs. self published), it seems crazy that a company would make the claim that they can't do things at a profit enough to compensate the authors estate, when many times, the author is lucky to get 50 cents a book, for a book that costs 3 bucks to make.

It's great to come back after a few days and see so many insightful contributions to this thread. Thanks to Mike for facilitating it.

The Chicago Tribune on May 11 reports that the confirmation of the deal has been deferred until May 17th to allow negotiation of settlement terms with parties other than Maloof.

The probate judge overseeing the case set a hearing for next week to finalize approval of the agreement. The judge also asked lawyers for the county to file in writing why they were asking to keep the details of the agreement under seal.

After the brief court appearance, David Epstein, the public administrator, told reporters that confidentiality was necessary because the county is still in the early stages of negotiations with others who own the rest of Maier's collection, which was bought before she had rocketed to posthumous fame.

Making the details of the deal with Maloof public could impair those future discussions, Epstein said.

It's not clear yet but we may not find out the terms of the settlement even when it's finalized if the judge agrees with the parties to keep the deal confidential for business reasons.

There are more details in a Hyperallergenic article on May 11.

They quote both Leah Jakubowski, general counsel for the public administrator of Cook County, and John Maloof saying he hasn't signed the settlement yet.

“We have a tentative agreement with John that is very close to being finalized. Because this is a supervised administration in the probate court in Cook County, the judge has to approve it,” said Leah Jakubowski, general counsel for the public administrator of Cook County. At a hearing [on May 11th], Judge Mary Ellen Coghlan scheduled a May 17 court date to settle her approval of the deal.

and they quote Maloof on what he's been doing recently with Vivian Maier's work

“I’m content, for sure,” said Maloof of the agreement, though he added that he hasn’t actually signed it yet. He explained that despite “scary” letters sent by Cook County at the outset, suggesting that he and others might have had to stop printing and showing Maier’s work, he’s been able to continue with exhibitions and other projects. “The estate was OK with that,” he said. “We ran everything by them.” What he did take a break from was the costly process of developing rolls of Maier’s film, of which he has “600 or 700.” He now plans to return to that. “I’m happy to get to a place where there’s an incentive to continue moving the project forward and spending money to process rolls of film.”

Hyperallergenic also points out that the question of Maier’s heirship won't be resolved at the hearing on May 17th. It's still unclear if Vivian's dead brother ever had offspring or even married: they would be the closest relations if they or their offspring exist. David Deal says that although Vivian Maier's mother's side of the family tree is well understood "the father’s side is much more complicated" so there's scope for more heirs to be found. Jakubowski says there is no timeline on determining who is the rightful heir or heirs.

Both articles are worth reading in full as they both contain useful summaries of the case and plenty of interesting details.

If anyone is interested the Petition for Probate of Decedent's Estate is Case Number 2014P003434 in Cook County Circuit Court. The will be updated with information of the progress of the case.

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