A little over two weeks ago, the tenuous peace surrounding the production and distribution of artwork by Vivian Maier exploded. It was a long time coming: a well of public discomfort had been bubbling ever since the release this spring of Finding Vivian Maier, a documentary made by John Maloof, the holder of the largest trove of Maier’s work and effects, that tells both her story and his own. People objected to the invasion of privacy the film seemed to represent for a woman who, during her lifetime, had been guarded to the point of paranoia; they objected to the way it fetishized her; and they objected to the film’s focus on Maloof as the sole hero of the Maier discovery.
But concerns about the film are, at heart, an extension of concerns over the way Maier’s work has been handled since her death. When she passed away, in 2009, the mysterious Maier left behind hundreds of thousands of negatives, plus slides, film footage, and audio tapes — not to mention shoes, receipts, mail, and more — and no immediate family. She did make some prints during her lifetime (those were left behind too), but most of her photographs exist originally only in undeveloped form.
Their second life — the one we know, the pictures you’ve likely seen on exhibition — has come at the hands of John Maloof and another collector, Jeffrey Goldstein, the two principal owners of Maier’s archive (or what we know of it). In the past five years, both have set up apparatuses for printing and selling her work: Goldstein runs Vivian Maier Prints out of Chicago, while Maloof, also based in Chicago, has teamed up with Howard Greenberg Gallery in New York to make and sell posthumous prints.
This is no small matter. Although change seems to be afoot, art dealers and institutions have generally not looked fondly upon prints made after a photographer’s death, in large part because the endeavor is riddled with doubt. How can we know that what we end up with is what the artist intended? Are the framing, color, printing technique as she would have wanted? Whose copyright belongs on the prints, and who should reap financial gain from their sale? And how are these questions complicated by a figure like Maier, who printed and shared so little of her work while she was alive? (In Maloof’s film, families for whom Maier worked as a nanny repeatedly say they had no idea she was a photographer.) Finally, what of the inverse question, which underlies all of these: Would it be better to defer to artistic integrity and only circulate the vintage prints, which in Maier’s case represent a very small fraction of her output?
If that weren’t tangled enough, issues of heirship and ownership are also at play in the Maier case. She never married or had children (though as a professional nanny, she cared for many). This means that when she died, there was no immediately apparent heir. Five years later, it’s still not clear who stands to inherit her estate, and with it, copyright over her now-lucrative work. In the meantime, a handful of people whom Maier never knew — mostly men — own the contents of her “fractured archive,” as one artist and researcher calls it. Many of those contents passed through storage lockers, some of which Maier defaulted on, a circumstance that seems to be complicating things even more. And two of those men, Maloof and Goldstein, claim to hold copyright on Maier’s images, after making an agreement with a man named Sylvain Jaussaud, who they claim is the artist’s heir in France.
This is the legal minefield that lawyer and photographer David Deal set foot upon this summer, when he took it upon himself to open a case in Cook County, Illinois, probate court to settle the question of Maier’s heirship once and for all. Deal is presenting another French man, Francis Baille, as the artist’s legal next of kin. On July 1, the Cook County public administrator officially opened an estate for Maier (not reported until a September 5 article by Randy Kennedy in the New York Times) and proceeded to send letters to everyone involved with the reproduction and sale of her work “warning … of possible lawsuits over Maier’s assets,” according to Kennedy. The takeaway? The case “could prevent her work from being seen again for years.”
I spoke with Maloof, Deal, and others involved in the case, hoping to wrap my head around not only the legal particulars but also the question of how this fairy tale devolved into a nightmare. Herewith, a breakdown of who’s involved and what they’re claiming.
John Maloof is the man whose name has been intertwined with Maier’s almost since the beginning, and who claims to possess some 90% of her known work. He also claims to have copyright on it. “What [the press and David Deal] overlook is that I do have a copyright agreement,” he told me. “I have a copyright agreement with her relative. I have an heir that I’m working with that I got exclusive rights from, and this heir knows Vivian well — he has photographs of her, photographs of her mother, photographs that Vivian made of him; he has Vivian’s camera …” That heir is Sylvain Jassaud, who’s featured in Finding Vivian Maier (though not identified as an heir) and lives in Saint-Julien-en-Champsaur, France.
“I had two genealogists in New York and two or more in France, among many researchers including myself, obsessed with putting together these [family] trees,” Maloof continued. “We knew Francis Baille [Deal’s heir] was part of that tree, but for reasons we were told by our experts that person was not the closest. We had every reason to believe that we had copyright.” (Maloof’s comments point to another potential difficulty in the Maier case: the differences between French and US law and how those might affect the outcome.)
Maloof says his team went “above and beyond” due diligence in attempting to determine the proper heir. He recounted calling the Cook County public administrator in 2010, “and what [the administrator’s office] said was, ‘We do not deal with copyright.’ So I called Washington, DC, and they said, ‘Copyright never reverts to the state; it always goes to the next of kin.’” Hence the genealogical research that led him to Jaussaud.
What Maloof didn’t do, however, was seek legal recognition of Jaussaud as heir in Illinois, or close Maier’s estate, which means the question of heirship remains unsettled in legal terms. And along with it comes copyright.
“The thing is, we’ve always wanted to just work out an agreement from the very beginning — that’s the whole point of me spending all this time and research to find somebody,” Maloof said. “It’s not like we’re trying to get away with something here. If we find that somebody is the closer heir we should be working with, we’d be more than happy to work out a new agreement with that person.”
Maloof, sounding exasperated but dogged, said he was proceeding cautiously and “ambitiously trying to get something figured with the public administrator.” He hopes to be able to continue to show her work, even as the case could take years to be resolved: “I think the world is enjoying this work and there’s so much enthusiasm about this discovery, and to just put it in the dark again with a big question mark of how long — it goes against the whole idea of copyright for helping art.”
Pretty much everything David Deal says runs directly counter to Maloof’s narrative. The dark horse in this conflict who seems to have materialized from thin air, Deal worked as a professional photographer for 20 years before deciding to go to law school in 2010. He was drawn to Maier’s story, he says, because it combined all of his interests. “As a commercial photographer, [copyright] was a constant concern of mine. During my first year of law school, I still considered myself a photographer, and viewed through that lens, I had almost immediately a problem with what was being done with [Maier’s] work. I viewed it through how I would feel if someone was doing that to my work — and the idea that someone I didn’t know had my work and decided to do things with my work that either had never occurred to me or I explicitly didn’t want them to do … that the gentleman that found her work would so quickly go from being awed by her work to ‘OK, well, let’s make some prints’” — all of this bothered Deal immensely.
So, he began researching Maier’s genealogy himself, to figure out who her heirs might be. “The problem with the family tree, if you look at it for about 30 seconds, it is insanely complicated,” Deal said. “There are literally hundreds of possibilities for potential heirs. And the idea that [Maloof] could even identify this one person and say, ‘OK, well we’ve done our work, I feel great about this’ … not to mention that they never went through US court, they never secured the copyright before they started doing these things. The idea that that’s good enough is laughable. The idea that your job is done when you found one remote distant heir that’s never been recognized in US court is nonsense.”
On Maier’s mother’s side, Deal found Francis Baille, a first cousin once removed from Vivian, which he thinks is the same distance between her and Sylvain Jassaud. According to the Times, Baille “had no idea he was related to Maier” but agreed to let Deal represent him in court in an attempt to prove his rightful heirship. Deal and Baille’s Petition for Letter of Administration filed in Cook County, which I’ve obtained, lays out a long and complicated family tree listing Francis as the only child of Rosalie Mathilde Davin and Fidele Baille, who was Vivian’s great-uncle. (A number of Jaussauds appear in the document, but Sylvain does not.)
Deal added that he’s still “actively researching” the patriarchal side of Maier’s family tree, which he claims hasn’t been much explored.
“For so long there has been one story and one story only, and that’s the story that John Maloof tells,” said Deal. “Well, it is a little bit more complicated than that. Saying, ‘You know what? I feel like the balance of things is in my favor: I’ve made the world aware of this work, I’ve done lots of good things, I found somebody, and that’s good enough.’ Unfortunately, that’s not the legal standard. That’s the problem I have.”
When the Times story first ran on September 5, I received an email from Goldstein, whom I’d previously interviewed, announcing that he was “shutting down our Vivian Maier office space immediately.
“The potential legal conflict ahead is of a nature where it is better for us to fold and go into a sleep pattern until this is resolved,” the note said.
Talking to Goldstein a few days later, he said the plan was still to suspend operations shortly and then wait to see how things proceed. “We’re trying to work out something with these government bodies that will allow us to move forward, now that we have notice that there’s a conflict,” Goldstein explained. He added that if he were to keep producing prints and organizing exhibitions, “it could be deemed by the courts that we’re now working in a malicious manner. The penalties for malicious behavior — they can charge per occurrence, and the fines on that can range from $75,000 to $150,000.” He said he’d already canceled Maier shows in Paris and Boston.
Goldstein reiterated Maloof’s story, that the team “spent tens of thousands dollars in pursuit” of an heir, that “John acquired full copyright from the heir, and then I purchased my copyrights from John. We have this great case of due diligence — nobody has lost anything from this,” Goldstein argued, and in fact, “we’ve enhanced the value” of her estate.
“We always felt that there was a probable cause of someone here in the States that holds copyright,” he added. “We were able to trace [Vivian’s brother] Charles to a certain point, and then it totally dead ends. We had hoped to find somebody stateside. So at this point the state of Illinois, who maybe have better resources or better infrastructure, may be able to find somebody stateside, which would preempt everybody who’s in France. So again, we’re talking about years.”
Like Maloof, Goldstein says he’s devoted a large amount of time and resources to reproducing and promoting Maier’s work, but when we spoke he seemed more resigned to his fate. “I’m always waiting for the other shoe to drop,” he told me. “I ran this project with the prospect that we could be shut down on any given day, just because of the nature of what it is.”
Of everyone I spoke with, photography dealer Howard Greenberg was the most assured. Leading with the caveat that “we’re right in the middle of it, so whatever I say can change tomorrow,” Greenberg told me that “from the beginning I felt secure in the knowledge that John Maloof did everything correctly in his search for the copyright holder. My feeling was, ‘OK, John can’t be judged negatively in all this.’”
Granted, he said, a Chicago court might not see it the same way, “but anything that was done up to now I think can’t be changed and has no negative impact other than, the courts could value it and add that to the worth of the estate. And that would be the basis for a settlement.”
One of the charges that’s been leveled against Maloof and Goldstein is that they’ve exploited Maier’s legacy for profit. Both have refuted the accusation, and Greenberg offered a defense of the men’s practices as well. “The fact that I and other galleries have helped in creating a market for these prints that we’re making — I don’t see it as commercialization. I see it as saturating an incredible demand among the widest swath of people I’ve encountered in my career to own a Vivian Maier photograph. And you know, that’s what galleries do. I don’t see that any finger pointing at John for it being commercialized and he’s trying to cash in is correct at all.”
In fact, it’s because of the money that Greenberg wryly said he wasn’t worried long term. “The bottom line is it’s been a great ride bringing her work out to the world. It’s been a phenomenon unlike any I’ve ever been a part of, and it’s not gonna stop. I can’t imagine anybody who was completely disinterested before wanting to stop an income stream.
“I also feel that for the future, regardless of the outcome, it’s obviously in everyone’s best interest for us to continue the work of Vivian Maier — because regardless of who it benefits, in the end it’s a benefit, and everybody knows that.”
As for the short-term view? “I haven’t had any trepidation at all, speaking for the gallery, about continuing to do the work we’ve been doing. And until I get a court order of some sort, telling me to cease, there’s no reason to.”
* * *
It’s hard to know what to make of a case in which the two sides seem so at odds, yet so connected. John Maloof and David Deal may look like rivals, but both claim — genuinely, from my view — to have the best interests of Maier and her work at heart. The question of what that means is now (and for a while) in the hands of the probate court of Cook County, which also makes for a riddle of its own kind: can a legal answer provide a moral one?
What is, in other words, most striking about the saga surrounding Vivian Maier’s work is how distanced it’s become from Vivian Maier. Of all the men mentioned and interviewed here, only Sylvain Jaussaud knew the late, lonesome artist. Lost at the center is the woman who took these vital photographs. Or, as David Deal put it, “Nobody would care if the images weren’t as spectacular as they are.”