Making Sense of the Legal Battle Over Vivian Maier’s Artworks

A legal battle has ensued over who has legal rights to an artist’s photographic negatives. Yes, you may remember those, from pre-I-phone days. This is what they look(ed) like:

This point is important because to a layperson there is a misunderstanding over the property rights attached to a work of art. There are many, but for our particular case let’s stick with the rights over the actual artwork (the tangible rights) and the rights over its copyright (the intangible right).

Let me give an example: if an artist sells her painting to a buyer the buyer owns only the painting itself and, under US Copyright law, has limited rights as to what the buyer can legally do with the painting and the image of the painting. The buyer could not sell the image of the painting to a t-shirt company for mass production. This is of course assuming that the artist had not sold the copyright of the painting’s image to the buyer, which would then change what the buyer could do with the painting’s image, and then would depend on the nature of the agreement between the artist and the buyer. Great, you say, enough of this copyright 101 primer.

Back to our the legal battle. According to the New York Times, the dispute at issue concerns the rights to the photographic negatives as well as other works created by Vivian Maier, an artist who, like many artists, had a “real” day job, as a nanny. Maier died in 2009, nearly penniless. As you can imagine, Maier died leaving behind a treasure trove of photographic negatives, prints, home movies, as well as audio and film footage.

The dispute revolves around the question of who is the legal owner of this treasure trove, and therefore, who owns the copyrights to it.

Presently, the owner of Maier’s assets is John Maloof, a former real estate agent in Chicago who bought tens of thousands of the negatives for less than $400 in 2007. According to the Vivian Maier website, over the course of a year, Maloof managed to save about 90% of Maier’s work and accumulated “a collection of 100,000 to 150,000 negatives, more than 3,000 prints, hundreds of rolls of film, home movies, audio tape interviews, and various other items.” Another collector, Jeffrey Goldstein, salvaged most of the rest (although there is also miscellaneous material held by other owners).

As reported by the Times, 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.

The problem? A photographer-lawyer, David C. Deal, took it upon himself to question Maloof’s legal ownership of the negatives and their accompanying copyrights. On his own volition and dime, Deal found what he alleges to be the true and legal heir to Maier’s negatives, and it’s not Jaussaud. What this means, in a nutshell, is that there is uncertainty as to who actually owns Maier’s work and their accompanying rights. Given that Maloof has been promoting and recently profiting from Maier’s work via exhibitions, books, and film, this legal quagmire is putting a damper on Maloof’s exploitation of Maier’s work.

Over dinner last night, a very keen artist asked me if, given the fact that Maier appears to have been photographically active from the late 1940s up until the late 1990s, some of these images would be in the public domain. A very good question indeed and worthy of a law school hypothetical. But, given the facts at hand, it does not appear that her images would be in the public domain. According to US Copyright law, if the negatives were unpublished (and that term is its own can of worms), there is still copyright protection over these images and will be for at least 70-years after Maier’s death, which means well into 2079.

For the time being, the state public administrator’s office for Cook County, in Chicago, which is charged with overseeing estates until relatives or others are approved by the courts to do so, created an estate for Maier on July 1 of this year and has sent letters to Maloof and others who sell her work advising them of possible lawsuits over Maier’s assets.

So what does this mean? Given legal quandaries such as this one, involving international parties and complex estate laws, it could take years before we have a final answer as to who the rightful owner is. It also means that the public could be denied access to Maier’s work should a new owner, one not as generous as Maloof, decide to restrict access to Maier’s works. A similar controversial situation concerns the work of Mexican architect and Pritzker Prize-winner Luis Barragán. Although his personal archive remains in Mexico, his professional archive — including the rights to Barragán’s name and works — was acquired in 1995 by Swiss furniture company Vitra under the auspices of the newly founded Barragan Foundation located in Birsfelden, Switzerland. Artist Jill Magid developed an art project concerning this acquisition, inquiring as to the ethics of a private and non-Mexican corporation owning an artist’s oeuvre while simultaneously restricting access to Barragán’s copyrighted works.

One can only hope that the parties and lawyers involved take a creative and productive approach to resolving this matter, and that they consider not simply the financial stakes involved, but also what the breadth, complexity and beauty of Maier’s work means to the history of photography and to the general public.