Protecting an artworks copyright & moral rights - artists should register work US Library of Congress


Copyright rendered meaningless when a law court fails to grasp the uniqueness of an artwork., as an auction house disassembles the 'Polaroid Collection' of donated art works with zero respect for the donating artists wishes or rights.

There are times when copyright is rendered meaningless, especially when a law court fails to grasp the uniqueness of an artwork, and the fate of the Polaroid Collection is a pertinent example of this. Built over the past four decades, the collection holds between 16,000 and 24,000 Polaroids, shot by an impressive line-up of the world’s greatest artists and photographers, including Ansel Adams, Andy Warhol, Chuck Close and Robert Frank. I have seen this collection and know how important it is both for it's range and the quality of the works it contains. On 21 June, 1200 of these Polaroids will go under the hammer at a one-of-a-kind auction in New York – much to the dismay of some of the artists who shot them.

The auction stems from the collapse of Polaroid last year, after its parent company found itself embroiled in a Ponzi scheme. In August 2009, a Minnesota Bankruptcy Court approved a request from PBE Corporation (a remnant of the collapsed Petters Group, which owned Polaroid Corporation) to break up and sell the collection. Regarded as Polaroid’s greatest financial asset, PBE hired Sotheby’s to recoup its losses. The auction is expected to fetch between $7.5m and $11.5m, with some images selling for at least $400,000. However, the actual ownership of the collection is matter for debate. In effect, PBE doesn’t own the copyright but, says American critic Allan Coleman, it doesn’t need to in order to go ahead with the sale. “What they are auctioning is not the copyright but the objects,” he tells BJP. “Copyright remains with the photographer.” In this case though, copyright ultimately becomes useless because of the uniqueness of a Polaroid. “In the US there are two levels of copyright protection,” Coleman explains. “The first level comes into force automatically when you create something. If you can prove you created it, you can prevent anyone from exploiting it. There is a second higher level of copyright protection when you register your work with the Library of Congress.

In order to register, you need to supply the library with a copy of the work,” he adds. “With this level of protection, you can sue for statutory damages if someone exploits your work. With the first level, you would have to prove damages, which isn’t always easy.” When Polaroid built its extensive collection, the contracts it drafted gave the artists access to the works in perpetuity. “They could access and borrow their images whenever they wanted for their own use – exhibitions, books, and so on,” says Coleman. But, this contract will be nullified once the collection gets dispersed and changes hands. “It’s no longer possible for the photographers to access the work,” he says. The fact that it’s virtually impossible to replicate an image shot on instant film makes access to the work essential for photographers to assert their rights. “Since they don’t have access, they can’t license the works. All they have is the copyright, which is meaningless now. I don’t think the court understood the unique nature of the collection.” In a last-ditch attempt to derail the auction, some photographers are planning to file a motion for a re-hearing, but time is already running out. Sotheby’s is now marketing the June auction, with Denise Bethel, director of the Photographs Department in New York proclaiming: “This will be the first time in the history of our market that we have offered a collection based upon a technology, rather than an artist or a theme.”

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