The Vivian Maier Dilemma

Vivian Maier (February 1, 1926 – April 21, 2009) was a nanny living in Chicago and New York during the 50′s and 60′s.  She was also a photographer whose work involved sizable numbers of photos taken of street scenes.  She was not publicly recognized as an artist until after her death and upon the discovery/purchase of her storage locker which contained over 150,000 unprinted negative, hundreds of rolls of un-developed rolls, along with a few thousand that had  been printed (leaving open the question of what she wanted produced).  Subsequently, the negatives were acquired by a handful of entrepreneurs, and select works are now being exhibited and sold as prints.  What is left out of this story is that she died largely without funds of her own, and that she died without any heirs.   The storage locker was sold because no one paid the storage fees.  So who owns the copyright in these photos?

Vivian died in Illinois a couple of years AFTER the negatives were sold at the storage auction.  In Illinois, like most states, if something of value is left by a decedent it “escheats” to the state.  However, as no one had ever heard of her as an artist before her death and the discovery and posthumous printing of her work, the photos largely fell through the cracks of the courts and state house.

Fast forward to the present and some of the owners of  the negatives  and prints found in that locker are apparently licensing the images under the claim that as the owners of the negatives, they are also the owners the copyright in the works – Appearing on one of their websites is the following:
    All photographs appearing on this website and in the archive of the Maloof Collection are copyrighted and protected under United States and international copyright laws. The photographs may not be reproduced in any form, stored or manipulated without prior written permission from the Maloof Collection.
While some have tried to twist the issue into whether the state should have the rights, in my opinion the issue of whether the state has rights is not really related to the storage locker, but rather to the fact that she died without a will. While it would be sad that she had no relatives to pass ownership to, the ‘escheat’ laws are there to help prevent property from just laying around for the first random person to snatch-up.  The contention that because someone owns the prints and negatives, they also owns the copyright is something of a concern and I think if the state or another reproducer of the negative challenges it, I believe they will lose.  If you remove the fact she has since passed away, I think most artist would be a little pissed if the buyers of their work started making prints. The copyright laws are quite clear that ownership of the physical item is distinct and separate from the intellectual property rights.

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