Polaroid: The Gift That Doesn’t Keep Giving

Clear and unambiguous documentary evidence of such gifts is needed for the recipient to be sure that the object received was a gift after all – and the reason it was given. These issues are at the heart of yet another art law wrangle that has been exercising the US courts in recent times: who owns thousands of photographs made by artists for the Polaroid Corporation, now that the company has filed for bankruptcy and must sell its assets?
It was the initiative of the Corporation's founder Edwin H Land, from the launch of Polaroid's first camera in 1948 right up until 2004, to give cameras and films to selected artists in exchange for acquiring the resulting works that experimented with the unique technology. The so-called Polaroid Collection now comprises between 16,000 and 24,000 such works from around 400 artists, including Anselm Adams, John Bodkin, Harry Callahan, Helen Chadwick, Jim Dine, David Hockney, Robert Mapplethorpe, Helmut Newton, Robert Rauschenberg, Lucas Samaras, William Wegman, Edward Weston and, most famously, Andy Warhol. Anselm Adams had acted as artistic and technical adviser to the Corporation in the early years of the project, and had also taken around 400 photographs himself that went into the Collection. The motivation for the project was not solely altruistic: ‘It was a way of demonstrating to photographers that there was more to Polaroid's products than the gratification of the instant print', according to Mark Howarth-Booth, Honorary Research Fellow at London's Victoria and Albert Museum (where in 1976, and part-funded by the Corporation, he curated the first UK show of Adams's works).
The Corporation's international market for Polaroids collapsed following the widespread availability of affordable digital cameras towards the end of the 20th century and the rise of the internet. In 2001, the Corporation filed for bankruptcy and its assets – including the Collection – were sold to a new company that continued using the original trading name. In 2005 the new company and its assets were re-sold, and ceased producing its Polaroid cameras in 2007. In 2008, the second new company filed for bankruptcy, and its assets – not including the Collection – were eventually bought in 2009 after the approval of a US bankruptcy court in Minneapolis. The Collection currently remains in the hands of the Corporation's liquidators, who have consigned a large number of selected works, around 1,300, to Sotheby's New York for public auction in June 2010. The works are estimated to fetch between $7.5m and $11.5m. Because the Sotheby's planned sale follows a bankruptcy court decision to liquidate Polaroid's assets, the auction house has a special responsibility to achieve the best market value for the works selected from the Collection. But there are many – including artists, photographers, critics, curators and collectors – who are deeply unhappy about the sale, and are currently planning to take to legal action to prevent it taking place. One of their motivations is that, in the words of Haworth-Booth (writing in The Art Newspaper, March 2010): ‘Polaroid did things no other company did. The Polaroid Collection is more than its 16,000 prints – it includes correspondence with many of the artists in the collection. It has the intricate historical importance of an archive, documenting one of the great periods of photography's efflorescence. It is not merely a group of more or less desirable trophies … The true value of the Polaroid Collection is cultural.'
The threatened legal campaign against the auction is being co-ordinated by former US judge Sam Joyner, who plans to apply for a reversal of the Minnesota bankruptcy court's 2009 authorisation of the sale. The grounds for such a lawsuit appear to focus on the nature and extent of the deals between the artists and the Corporation, by which the works were acquired for the Collection. Apart from the 400 or so Adams works (the lawful acquisition of which appears to be uncontested), Joyner contends that many of the deals did not transfer ownership of the works from the artists to the Corporation. He is currently asking relevant artists to join his campaign and supply him with copies of their written ‘Polaroid Collection Release' agreements with the Corporation, which he wishes to review (apparently, there were many and various versions over the project's five decades). Joyner already has a key ally in the US-based photography critic Allan Coleman, whose website and blog first alerted Joyner to the planned sale and the issues arising for the artists involved.
The key contention is that the written ‘Release' agreements did not transfer the physical ownership of works from the artists to the Corporation. Rather, that they only gave the Corporation non-exclusive rights to exhibit and publish the images for non-commercial purposes. In other words, the ‘Release' document merely allowed the Corporation to show the works (and was therefore a non-exclusive and non-commercial copyright licence); but was not a ‘contract of sale' or ‘deed of gift'. From that starting point, Joyner contends that the two bankruptcy courts that authorised the sale of Collection – first in 2002, then in 2009 – did so in ignorance of the true nature and contents of the ‘Release'/copyright licensing agreements, and that the sale should be cancelled.
In February 2010 Sotheby's issued a statement to the US-based Art Market Monitor about the planned sale: ‘Both of Polaroid's bankruptcy proceedings in 2002 and 2009 were well-known and well-publicised events, with notices provided of the hearings as required by the Federal Bankruptcy code. Any parties interested in inquiring about individual works in the collection had multiple opportunities to raise questions. On August 27, 2009, the Federal Bankruptcy Court in St Paul, MN approved the sale of approximately 1,200 photographs free and clear of all claims and encumbrances of any kind. That order was issued by the court after the court reviewed and specifically overruled the objections to the sale that were raised by a few photographers and others. No objections were raised regarding any of the approximately 1,200 photographs to be offered in the June 2010 auction.'
A further facet of the matter stems from comments posted in the Wall Street Journal's online bankruptcy law blog by David A Ross: ‘I know there was a move afoot during the 90s to donate the [Polaroid Collection] to the Whitney Museum of American Art while I was its director, and I recall that the restrictions of selling the work led the already cash-starved [Corporation] to consider the gift as it was consistent with the agreements that Polaroid had entered into with the participating artists.' Ross's recollections might prove useful to Joyner's campaign if, for example, the donation failed because the Whitney and/or the Corporation judged that the Collection was in fact owned by the artists.
If the campaign were to succeed in persuading the bankruptcy court to cancel the Sotheby's sale planned for June 2010, the court would have power to decide the fate of the entire collection, and not just the 1,200 works selected for sale. One of the favourite options for the court – given that the campaigners would have successfully argued that the Collection should not be broken up and individual works sold – would be to allow its acquisition (as a whole, or even the bulk of the works not consigned for sale) by a suitable public institution, such as the Whitney.

© Henry Lydiate 2010

Artists have always donated their artworks to worthy recipients: family, friends, fellow practitioners, potential buyers and collectors, or charitable and other good causes. Motives for their doing so vary widely from, say, altruism or love and kindness at one extreme to bribery and corruption at the other.

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.