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Tuesday, 23 December 2014

Comments

Mike,
As I once told you, I met John Maloof just after he had found the negatives. He was buying my used M8 off Craig's List and we met on the border of WI and IL for the exchange. He was looking for someone to print the negatives for his first show. I wish I had done that.

In a word: sordid.

I know it's unfortunate and illogical, but this whole ordeal actually makes me want to avoid looking at Maier's photographs. This fiasco certainly doesn't seem like something Ms. Maier would have appreciated. At this point it practically feels like a violation.

For all the drama and all the potential money involved it's the same damn story:

THE ARTIST NEVER GOT PAID!

Henceforth, I refuse to give a s--t.

[That's on her, IMHO. She never tried to get paid. Never even made prints, for the most part. Didn't develop a lot of her film even. She apparently just liked shooting. She's been lucky, the way I look at it--a lot of archives like hers just get discarded. --Mike]

"That's on her, IMHO. She never tried to get paid."

I thought that, in the recent documentary on her, there was mention of her exploring the possibility of getting some of her negs printed up by a guy in the French village that her family came from?

Think there's a letter in which she states that she rated her work. She certainly wasn't dismissive of it.

Sad story.

Ugh this is so depressing. Make a few master prints of the best images then burn the negatives. Just do anything to keep the lawyers away.

The part that irritates me is that Cook County wants to cash in on this while they have a chance. Public bodies like government bureaucracies are not there to cash in on stuff as if they were just another corporation. Where did this notion come from?

I purchased all five of the books that have been released. Two came out this year and I am glad they made it out. The potential money the negatives may make attracts these vultures to circling around negatives. Future books may never come out due to the cost of licensing, and her collective material vanish into storage, not to be seen except for determined researchers.

Taking photos was her way of enjoying life. We can only hope she found similar happiness with a minds-eye camera in Heaven.

I have been very interested in this story and have followed along with it, seen a couple gallery shows in Boston and Paris as well as a great lecture at Brandeis University. I am a huge fan of the photographs and it's obviously a great story. I think Maloof seems to have been a very responsible steward of the work. He has made great efforts to complete the story and protect the quality of the work. Coming away from the documentary "Finding Vivian Maier", I felt very comfortable that the archive was in great hands and that he work was being presented in a very responsible manner - much better than she was capable of doing on her own.

To the point regarding Vivian Maier's desires on the matter? She was clearly very interested in making these images. She was very good about making sure they were saved for decades. Nobody will know what she really would have wanted under current circumstances. But we do know that she did not destroy the work. If she wanted this work destroyed and never seen, she could have easily accomplished that. But she didn't.

I think the public interest is best served through Maloof's efforts. Maloof discovered the work, has invested time and treasure in the work and clearly has a genuine passion for the project. Maloof has CREATED the demand for this work. Without him there would be no Vivian Maier. This Attorney Deal who has surfaced represents everything wrong with the legal profession in my opinion. The equivalent of an ambulance chaser. What benefit will his efforts bring other than extracting legal fees?

John
Boston

The regular reportage in the StreetShootr article is a big hyperbolic in the usual "reporter who doesn't quite understand what's going on" way. They're not obscure laws at all. Copyright is well understood and goes to the estate. The question is who owns the estate.

The crux of the article is:

Bulger: It all comes down to the rightful heir to Vivian Maier’s estate. Cook County has determined that Charles Maier, Vivian’s brother, is the only legitimate heir. The problem is that he changed his name and disappeared sometime in the fifties. The genealogist that Jeffrey and John hired was unable to determine his new last name and could not trace down any marriages or children. The genealogist was, however, able to identify a first cousin in Europe as the closest living heir to Vivian Maier.

This was contested by attorney David Deal who believes another cousin is the rightful heir.

Cook County has determined that both David Deal and John Maloof are wrong. The say Charles Maier is the one true heir and the law provides him 6 years to make a claim. In the meantime, Cook County has set up an estate and I assume they would like to generate some income from the estate by licensing rights to use the images because they say they control the copyright. They have asked Jeffrey and John for all of the digital files so that they could start licensing the work out.

I have not been involved with these discussions, but it appears that Cook County is trying to make all decisions and just give John and Jeffrey a small percentage of whatever revenues would be generated. However you look at it this is going to be tied up for years. This is why Jeffrey Goldtein suspended operation until the matter could be resolved.

How you determine the heir (i.e. Illinois probate law, in this case) is well understood but can be complicated and in this case a missing heir (Maier's missing brother) seems to have been ignored by Maloof's lawyer but considered significant by Cook County's lawyers. There is a good summary of how to deal with a "missing heir" at http://info.legalzoom.com/heir-cannot-found-24219.html

So the estate goes to the missing heir but he can't be found (and so his potential heirs can't be found) so the estate escheats to Cook County. I think that's Cook County's argument.

David Deal and Maloof both claimed to have found first cousin once removed in Europe (though both of those stand at the same rank for inheritance).

http://www.nytimes.com/2014/09/06/arts/design/a-legal-battle-over-vivian-maiers-work.html?_r=1

Mr. Maloof hired genealogists to find heirs to Maier in France and eventually paid an undisclosed amount for the rights to her work to a man named Sylvain Jaussaud, whom experts identified as her closest relative, a first cousin once removed.

But Mr. Deal hired his own genealogists and last year traveled to Gap, an alpine town in southeastern France, home of Francis Baille, a retired civil servant whom he believes to be another first cousin once removed.

First cousins share great-grandparents. First cousin once removed share the same ancestors but they are grandparents for one person and great-grandparents for the other. These people would be trumped by the missing sibling heir.

Assuming that the Cook County lawyers have this determination correct (and as dealing with intestate estates is their "day job" I'll assume it is) the problem for Cook County is they don't own the physical objects (the negatives, slides and movies). Other people do. After all Vivian Maier was still alive when they were purchased after she defaulted on her storage contract so they can't be part of the estate. But clearly the estate at Cook County will own the copyrights. This is the complicated but not obscure bit.

Cook County clearly doesn't own the scans (that have been made by and paid for by a third party) and if they're not distributed there is no copyright issue in making copies for your own use. So they can make an offer to the owners of the scans to allow Cook County to make use of them.

There is going to have to be a negotiation between the owners of the objects (Maloof and Bulger) and the owners of the copyrights (Cook County) if either party is to be able to make use of them. So that's not really a legal issue for the courts but it is a business contractual issue. They both have to come to an agreement if they are to profit from this. If the lawyers of Maloof and Bulger disagree with the probate ruling then that would be a legal issue for the courts.

It's unclear if Cook County will try to get licensing rights payments for the already published books and films separately. They could do that but it might be a bad idea when in negotiations for the larger rights (which could be rather more valuable). I presume at some point in the negotiations the charges for those rights will be folded into the agreement.

This will roll on for a while yet but I don't think it will be years.

Wow, so one of the carpetbaggers cashes out while he still can? What a big surprise... Not. Maloof is no saint, and not worthy of any respect in this. Who wouldn't want to promote and cash in on the only notable thing they have a chance of making a windfall on? Thus no surprise he wants to create demand. If it wasn't all about the money for him (and everyone else) these would have been donated to the LoC and put in the public domain long ago. Seems to me Cook County and Deal have as much claim on these as anyone else.

@Matthew Hargreaves: "I purchased all five of the books that have been released. Two came out this year and I am glad they made it out. The potential money the negatives may make attracts these vultures to circling around negatives. Future books may never come out due to the cost of licensing, and her collective material vanish into storage, not to be seen except for determined researchers."

Are you saying that whoever comes into legal possession of the negatives might set licensing fees so high that book publishers would be deterred? That would seem to be foolish and self defeating, if the main goal is to make as much money as possible. Vivian Maier books might be far more lucrative than prints, as they would be accessible to a much larger audience.

In any event, this legal wrangling is unseemly at best. A pox on the vultures whose only interest is to cash in on the efforts of others.

Yeah, the vultures starting coming out of the woodwork not long after John asked us in HCSP what he should do with all of those negatives. Deal's just another in a long line of them.

I hate this kind of lawyer stuff. I just read a very interesting column in the Wall Street Journal by an academic economist named Alan Blinder (who wrote probably the best book on the last economic crisis) who enumerated some interesting ideas about how to "fix" the banks. For example, banks should be given "points," like people get for traffic violations, and after so many points are accumulated, the banks' license to operate is simply taken away. Another idea: require bonus "pools" for bankers who get bonuses. When violations are found, the penalties would be taken out of those bonus pools, before they go to the bank profits, which simply penalize otherwise innocent stockholders. I think the same kind of out-of-the-box ideas could work with lawyers. For example, lawyers often simply come up with lawsuit ideas, and then try to find clients to support them. For example, lawyers often ask 30% or more of the winnings from a lawsuit. What if, before such a suit is approved, a court would have to find that the plaintiff could not support the costs of the suit himself? As it is now, a lawyer can hunt around for even an improbable plaintiff -- say, a distant relative who had no known relationship with a person, yet sues to become the legal "heir" - and that plaintiff can simply say "go ahead,' because it's no skin off his butt no matter what happens. If he loses, he loses nothing. If he wins, well, he gets 70% of something. But if he were required to pay upfront for the lawsuit, then he might well choose not to. In cases where it is shown that the potential plaintiff really can't pay for the suit, perhaps the payout to the lawyer could be on the basis of salaries paid, to, say, public defenders on an hourly basis...if he wins. If he loses, he gets nothing. That might also discourage speculative lawsuits. None of this will happen, of course, because most of our revered lawmakers are...lawyers. And they do take care of their own.

You've posted a picture of VM which was clearly taken by somebody else - the first such I can recall seeing. Can you tell us more about it?

As I understand it the Maier archive was sold ante mortem after being taken in forfeit for not paying storage charges. The negatives etc are all therefore the legal property of the various buyers of the physical items and not part of her "estate". The question of heirs only comes into play for any royalties on copies and reproduction. I don't see that Cook County or any emerging heirs can force owners of the originals to make reproductions to generate royalties so it's a classic stand-off situation where ultimately the physical owners could threaten to destroy the negatives if heirs or county make greedy claims.

(I can't help imagining a scenario in which the negs had turned up on one of those dreadful bogus storage unit auction programmes on TV :-)

This would be Kafkaesque* except that Ms Maier did not object to publication, it is her alleged supporters who seem to be calling for the suppression or destruction of her work.

* "Almost all of Kafka’s strange and surreal stories, including The Trial, The Castle, and Amerika, were published by his friend Max Brod, who ignored Kafka’s wish to burn all his manuscripts after his death from tuberculosis at the age of 40."
http://www.thedailybeast.com/articles/2013/08/26/15-posthumous-novels-from-kafka-to-stieg-larsson.html

OK, inspired by Sony's "Please pirate this movie" solution for the mess with "The Interview"--and by the sale of all kinds of negatives and Kodachromes on eBay--here's my idea:

John Maloof auctions off the negatives, individually, on eBay, just like anyone could who bought, say, a box of Kodachromes at a garage sale. He would make clear that the buyer will not have copyright until the legal mess is ironed out. No one can keep him from selling them, because every auction winner would only be buying the physical negative (which Maloof undeniably owns), not the copyright (the ownership of which is disputed).

Maloof would of course be free to scan each negative before selling it and would presumably archive all of the scans. He could even give each negative+scan a unique 6-digit "serial number" to make it easier to track their presence online (see below).

Then "Fair Use" kicks in. Maloof and/or the buyer of each negative could put copies of the scans online--in as high of resolution as they want--in various articles and blogposts about Maier, about 20th-century photography, about locations/cities, about TLRs, whatever--as long as they are not used commercially. The jpgs of the scans could even be gathered on a commerce-free "tribute" website or two that contains only Maier-related articles and photos.

The images depicted in those articles would not be for sale (because that gets into copyright issues) but in the U.S., fair use would allow reproduction of even high-resolution versions of the images in news/editorial/tribute contexts.

I'm guessing that some people would download those high-resolution images from those news/editorial/tribute websites, and some might choose to print them. They would only get in trouble (for copyright reasons again) if they tried to sell the images, digitally or in print form.

Would people buy a Maier negative even if they could never make a penny off it? I know I would; I'd pay a pretty decent price for one, which I would scan, darkroom print, and then frame (backlit, with a large matte, if you must know). And if Maloof didn't put his scan of my Maier negative(s) online (in a fair-use news/editorial/tribute context), I would.

Would Maloof actually sell off his precious negatives? He might, if he doesn't want to spend his life in court, dealing with copyright fighting. As things stand now, he won't make another penny off them for a long time.

Why wouldn't Maloof just keep the negatives, and publish the scans himself under Fair Use? Because there would be no financial gain in doing so. Wanting to make money from something he bought for a bargain price doesn't make him a scumbag; it makes him like millions of people who use eBay every year to sell their stuff (including negatives). Maloof also seems to genuinely want the Maier images out there, and he would know that it's easier for the hungry attorneys to stop one negative-owner than hundreds or thousands of them.

Would Maloof lose financially if he sold most or all of the negatives? Actually, he'd probably make more money--perhaps a lot more--selling the negatives individually then he would selling books and prints, because book/print sales would involve copyright and then he'd have to pay hefty fees to the various lawyers and heirs.

But wouldn't it be a pity to break up the Maier collection? It's not ideal, but the collection is already split up among at least two owners, and the current impasse that is keeping the images out of circulation is perhaps even further from ideal. If Maloof scans all of the images he sells, the digital version of the collection at least would remain intact.

"Hard cases make bad law," is one of the aphorisms of the profession. This is a bizarre situation, and of course one thing that happens is random people try to figure out ways they can profit from it. These attempts often look greedy, and sometimes downright nasty and crude, to those with other interests (I like to think of us as interested primarily in the photos).

If lawyers could write rules to distinguish between people having an unusual but entirely honest, heartfelt interest in a situation and people looking to exploit it for a quick buck, I would think they would have done it by now. However, in cases I've looked at, it's always obvious to me which people fall where.

Dear MM,

Ummm, No.

Doubly-no.

Really, really NO.

The first fail: that is NOT how Fair Use works, legally. Not even close. You can't do anything you want with a copyrighted work, just because you're doing it non-commercially. If you diminish or destroy the value of someone else's copyright, when it doesn't fall under one of the very explicit exemptions for "fair use" (and this most certainly doesn't), you're in violation of the law. Sony can say “pirate this movie” of they wish because they own the copyright. What you're doing is tantamount to claiming that any pirate board out there that offers downloads of movies or music for free is entirely legal, because no one's making a cent off it. Or, to make it more personal, your argument is equivalent to saying if you bought one of my prints, you could make a high-resolution, high-quality scan of it and put it up online and so long as you were offering it for free, you'd be immune from legal attack or judgment.

Want to give that a try? See how well it works out for you.

(My friendly advice? Don't, actually. I wouldn't want to have to hurt you.)

The second fail: copyright is property that has value. What you're suggesting is that Maloof use the property rights he has to maliciously destroy someone else's property's value. No, I'm sorry, but this is not second grade. Judges are not children or naifs. They would see through that one so fast it isn't funny. There would be an instant injunction against Maloof, and deservedly so. And, then he might very well get sued for damages for any loss of copyright value that occurred before the injunction came down. And he would lose. Deservedly so.

Really, truly, do not try this at home without adult supervision. You could lose an eye… Or your entire house. This is a job for trained professionals.

pax \ Ctein
[ Please excuse any word-salad. MacSpeech in training! ]
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-- Ctein's Online Gallery http://ctein.com
-- Digital Restorations http://photo-repair.com
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