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Almost forgot to tell you that the Sprint 2010 issue of Ag is in the shops now. Since the closure of the Borders bookshop chain our distributors have been hard at work building up alternative stockists and increasing orders at existing outlets, but it's not something that can be achieved overnight. Ag is already stocked by several gallery bookshops, including the Photographers' Gallery, Arnolfini, Serpentine and Cornerhouse, and photo retailers including Metro Imaging and Silverprint in London. If you are not near enough to a stockist you can buy Ag direct from us post-free, click here for details.
As usual, Ag59 features a great mix of inspiration and information. There’s still time to enter our 2010 Brilliant Book Awards with almost £3000 in prizes and David Chow visits a fine art publisher creating beautiful books from original prints. Bill Jay challenges received wisdoms in photo history and there's a stunning portfolio of a twilit beach from Mike Jackson. Paul Gallagher concludes his series on b&w landscape and Nicholas Sinclair previews new work from his forthcoming book Five Cities. Terry King describes experiments with alternative processes at Hands-On Pictures and David Lee recalls a once-famous photographer lost to history. Plus Frederic Lezmi’s road journey and four new portfolios.
By contribuor A. D. Coleman
The world-famous Polaroid Collection, which has existed in an under-the-radar state of crisis since sometime in 2001, has entered its eleventh hour. As things now stand, by the end of June 2010 the collection as developed over the second half of the 20th century may have ceased to exist. However, a pending challenge to the dissolution by sale of the collection might yet change all that.
The bankruptcies of two separate corporate entities that owned the collection led to the current situation, in which, absent any intervention, the cream of the collection as identified by Sotheby's will go on the block at that auction house's New York venue on June 21-22. This includes works by Ansel Adams, Chuck Close, David Levinthal, Bill Owens, Robert Mapplethorpe, Mary Ellen Mark, Deborah Turbeville, Andy Warhol, Carrie Mae Weems, and dozens of others. Sotheby's estimates that the sale will bring in between $7-11 million USD.
Assuming the auction takes place as planned, after those 1260 pieces get dispersed among the bidders some 14,676 more — including images by such figures as Toto Frima, Beatrice Helg, Barbara Kasten, Mark Klett, Arno Rafael Minkkinen, and Neal Slavin — will remain in the hands of John R. Stoebner, the trustee appointed by the Minnesota Bankruptcy Court. Stoebner still has the task of selling the rest of this collection on the open market in order to benefit the creditors of Petters Group Worldwide, one of the corporations created by the disgraced and now-incarcerated Ponzi schemer Tom Petters. Stoebner can dispose of the bulk of the collection as he sees fit, with sale to a single buyer his most likely preferred choice. Reportedly he hopes to raise $2-3 million USD from that process, but to date has failed to find a buyer.
Since July 2009 I've reported on and documented much of the backstory leading up to this point at my blog, Photocritic International (www.photocritic.com). In brief, the bankruptcy hearings of the original Polaroid Corporation (2001-02) resulted in the Delaware Bankruptcy Court declaring the collection an unencumbered asset that could get freely sold to settle debts. The eventual buyers, part of the conglomerate Petters Group Worldwide (PGW), acquired the entirety of the original Polaroid Corporation's holdings — equipment, patents, land and buildings, plus the collection — for pennies on the dollar.
But PGW in turn collapsed in 2008. PGW's bankruptcy in Minnesota (2008) led to the acquisition, at fire-sale prices, of most of the remaining assets of the original Polaroid Corporation by yet another entity, PLR IP Holdings, LLC, current owners of the Polaroid brand and marketers of new items — both digital and analog — under that brand name. (They're the ones who hired Lady Gaga as a Creative Director.) However, for unspecified reasons PLR IP Holdings, LLC chose not to acquire the Polaroid Collection, leaving it in the hands of the creditors of PGW. Hence the present state of affairs.
On August 27, 2009 the Minnesota Bankruptcy Court approved the auction of the designated slice of the collection that Sotheby's had selected, endorsing at the same time the trustee's selling off of the leftovers. The 1260 items for the auction have since gone to Sotheby's for cataloguing, preparatory to the June auction. The rest sit in storage in Somerville, MA, including some 1500 items placed on permanent loan at the Maison Européenne de la Photographie (MEP) in Paris, in the early '90s, around the time the original Polaroid Corporation closed down its European division. That loan was cancelled and these works recalled to the U.S. circa 2004. (Another group of 4600 works from the collection are still on loan to the Musée de l’Elysée in Lausanne; its fate remains unclear.)
The question on which the anticipated challenge to the sale of the collection rests concerns the current creditors' claim to ownership of the majority of the works in the collection — and thus the claim to outright ownership submitted by the original Polaroid Corporation in the 2001-02 bankruptcy proceeding. Roughly two-thirds of the works listed for the auction, approximately 800 of them, were almost certainly acquired by the original Polaroid Corporation either as outright purchases or else as work made for hire, the latter produced under contract with Ansel Adams, Paul Caponigro, Carl Chiarenza, and others who served as designated testers of Polaroid cameras and materials during the company's early years. In all likelihood these items (plus several hundred others not included in the auction group) were owned legally by the original Polaroid Corporation, and that ownership would have passed appropriately to the subsequent purchasers of Polaroid's assets.
However, as the Polaroid Collection evolved, starting in the late 1960s, the company acquired work for the collection on the basis of an unusual and perhaps unique barter arrangement made with (eventually) some 1500 photographers. Under this plan, Polaroid exchanged cameras, film, and studio time with the 20x24 and 40x80 Polaroid cameras for prints. Sometimes this was confirmed with a standard letter of agreement drafted by the Polaroid Corporation; in other cases, it appears to have been a handshake deal. One way or another, the terms were consistent:
Polaroid received "worldwide non-exclusive rights for exhibition and editorial (non-commercial) publication purposes of the following images in perpetuity."
The photographer "retain[ed] access to his/her images for exhibition and publication purposes."
Variants on this agreement governed the Polaroid Collection's acquisition of the vast majority of its total holdings (the full inventory lists 15,934 works) and one-third of the works cherry-picked by Sotheby's for the June auction. Based on what he sees as the "restrictive language" of these agreements, Federal Magistrate Judge Sam Joyner of Tulsa, Oklahoma, has issued a call for photographers with work in the collection, and especially in the auction, to come forward as plaintiffs in a Motion for Rehearing. That would force the Minnesota Bankruptcy Court to examine the letters of agreement documenting the entry of works into the collection, and the legal implications of the language the Polaroid Corporation elected to use for those purposes. No court to date has scrutinized those contracts and considered their consequences.
Joyner's call to action was announced in a March 2010 story by Charlotte Burns in The Art Newspaper (London/New York). According to Burns, "Joyner believes that both the Delaware Bankruptcy Court that awarded transfer of the Polaroid Collection in 2002 and the Minnesota Bankruptcy Court that approved the Sotheby’s sale in 2009 'acted without full knowledge of the restrictive language in the many and varied licence agreements.'" An unnamed spokesperson for Sotheby’s is quoted as insisting that the two bankruptcy proceedings fully cleared the collection for unencumbered sale.
A follow-up article by Burns in the April issue of the same publication identifies Chuck Close as one the anticipated plaintiff photographers, quoting the New York-based artist as asserting that his opposition to the sale is "absolute." Burns adds, "'These were not Polaroid’s works to sell,' said Close. 'I gave my best work to the collection because it was made clear that it was going to stay together and be given to a museum.'"
According to Joyner, 56 photographers with some 1650 works in the collection have indicated that they will become plaintiffs; 5 of them have a total of 203 prints in the auction. The decision regarding the filing of the Motion for Rehearing will be made within the next 30 days. Photographers with work in the collection can contact him at firstname.lastname@example.org.
Copyright 2010 by A. D. Coleman. All rights reserved. By permission of the author and Image/World Syndication Services, imageworld[at]nearbycafe.com.For further information and updates, visit the author’s website by clicking here.