|Vivian Maier, self portrait New York c1950s|
Vivian Maier appears to have two male heirs, both French and both first cousins once removed. One of these heirs, Sylvain Jaussaud, has transferred their rights to John Maloof, who was one of the first to discover Maier’s work and has since bought the majority of her negatives as well as helping to create a film which celebrates her work and its discovery.
The second heir was identified by a photographer/lawyer, David Deal, who believed that Maier’s legacy was being misappropriated and sought to track down any additional relatives who might have a claim. He convinced a second French cousin, Francis Baille, to seek legal heirship in the US courts with Deal as his legal representative.
As all Art and Artifice readers are no doubt aware, there is a fundamental distinction between a work and the copyright in a work. One does not necessarily go with the other. That said, in the UK, at least, if you inherit a work of art, the copyright is deemed to go with it unless there is a contrary intention expressed elsewhere in the will. It is this distinction that is causing the problem, Maloof is the lawful owner of many of the physical photographs and negatives but is not necessarily the owner of the copyright.
Whether or not Maloof is the owner depends on (1) the agreement which he struck with Jaussaud which sounds from the reports like it was a full assignment of rights, and (2) whether Baille has a claim to full or partial ownership of the rights in the photographs as well.
There is now a court case in Chicago to determine who owns the rights.
Unfortunately, whilst the case is working its way through the courts, it will be very difficult to see Maier’s photographs. The Cook County Public Administrator department reportedly sent letters to put all interested parties, including galleries exhibiting Maier’s work, on notice of the rights issue. Any dealing in the photographs is likely to be a challenge until this is resolved.
In the meantime, I have some queries for my US colleagues:
1 A particular quote from the New York Times article which has been circulating around the internet states that: “Under federal copyright law, owning a photograph’s negative or a print is distinct from owning the copyright itself. The copyright owner controls whether images can be reproduced and sold.” That is quite surprising. I can see that copyright could stop a reproduction (and by extension a sale following a reproduction) but how copyright can stop the sale of the photograph or negative itself. There is a clear distinction between the object and the copyright. But if only the object is sold and the copy (i.e. print) was made by Maier (the artist) what is to stop the resale?
2 My understanding is that until the photographs are registered, it is not possible to get statutory damages or legal fees for infringement of the photographs. Is that correct? If so, what will happen if the copyright in the photographs which have been registered by Maloof is found to be owned (or partially owned) by Baille?
Any light you can shed on this and the case in general would be much appreciated.
You can read much more about the background to this story in The New York Times (which takes a more Maloof friendly approach) and in The Independent (which is a bit more suspicious of Maloof's motives).
I work in copyright law in Los Angeles (litigation paralegal) and had a case earlier in the 2000s that concerned an almost identical issue. Copyright resides in the image itself, not the physical negative or slide. Reproductions made from the negative are considered derivative works, which is considered infringement under U.S. Copyright Law. Also, even though you own the negative, your profit from reproductions is still a profit of that IMAGE, and so a form of theft and/or infringement.
Regarding damages and fees, Mr. Deal seems uninterested in making a big profit from this case, and more concerned with making sure rights--and future profits from the images--reside with the family and/or the rightful copyright owner. We would need to see the agreement Maloof allegedly made with the other cousin to know what rights Maloof claims to have acquired, and whether the family member was aware of how those rights work.
Question 1: The NYT is partly right. No question that the copyright owner controls the reproduction of images. She also controls the first sale of those images. Copyright cannot stop the subsequent sale or display of a copyrighted work. So if someone owned a legally-acquired print or negative made my Maier, her estate would have no say on subsequent public display or sale of the work. If the reproduction was an infringement, however, the copyright owner can stop further distribution and use of the reproduction.
2. You raise an interesting point about registration. If Maloof's registration turns out to be faulty, my understanding is that the Copyright Office can cancel the registration. One of justifications for cancellation in the draft Compendium of Copyright Practice is "the claimant named in the application does not have the right to claim copyright." Baille can at any time submit his own registration applications for the work; if his registration is accepted as valid, registration would begin with a new date. One tricky question: copies of the registered works must be submitted with the registration. If Maloof is the only one who has physical copies, how will Baille get a copy to submit?
I don't know Illinois probate law, but I suspect that both Maloof and Baille may have inherited and share the copyrights. I believe (but I would have to do more research to confirm) that the registration would be valid even though Baille had not been listed as a claimant. Baille could file an addendum to the registration to get himself listed as a claimant. Regardless, Maloof would be liable to Baille for half of any profits he may have made during the previous three years.
It seems pretty clear that when the NYTimes writer said that "The copyright owner controls whether images can be reproduced and sold," he meant that the owner controls whether new prints can be reproduced and then sold, not that the copyright owner controls whether already-lawfully-reproduced images can be sold. If the Times intended the latter meaning, the writer was mistaken. But I think the former is the more natural reading.
As for your second question, I'd have to do some research (which I have not done), but I suspect that, assuming both claimants are found to have an equal claim to the inheritance, the late-comer would be entitled to an accounting and half the profits from licensing. But I am fairly certain that either joint owner of a copyright can license the work for reproduction, and that the other co-owner cannot unilaterally veto such a license; the remedy will continue to be an accounting and a division of profits.
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