Copyright Moral Rights

How Vivian Maier’s Undiscovered Photographs Changed How We Think of Copyright Laws

Vivian Maier
Credit Vivian Maier courtesy of the Maloof Collection.

Generally speaking, the concept of ownership is easy: you have something in your possession, which you obtained by legal means, and therefore can do with it what you wish. Determining copyright ownership, however, isn’t always as clear: while most of the time, the creator of a work is also the owner of a copyright, the ownership of copyright can often change hands – with or without the knowledge and consent of its holder. Sometimes, ownership in fact and ownership in copyright intersect – and the ensuing battle brings up a host of legal and ethical considerations that are difficult to address.

In one such instance, a legal battle that’s been brewing over years and across continents raises some interesting conversations about copyright law, particularly where the original author and owner of the copyright is deceased.

When real estate agent John Maloof came across a box of photographs at a repossessed storage auction, he figured there might be a chance he’d find something he could use in his book on Chicago’s North Shore neighborhood. Purchasing the box for $400, Maloof incidentally stumbled upon the work of one of America’s greatest 20th-century street photographers of all time – and absolutely no one knew who she was. From the 1950s through the 1990s, Vivian Maier worked mostly as a nanny, taking pictures in her spare time. At the time of her death, she left behind over 150,000 negatives that no one had ever seen. Maloof’s accidental find turned out to be one of the greatest discoveries in American art history in some time. He set to work recovering and publishing much of Maier’s work, curious about the woman who had created the photographs. Maloof invested thousands of dollars of his own money in order to show Maier’s work to a wider audience. Gathering attention from major museums, Maloof began exhibiting Maier’s work, and eventually made a critically-acclaimed, Oscar-nominated documentary, “Finding Vivian Maier.”

‘Til Death Do Us Part: Understanding Copyright

Before long Maloof realized that his work was likely offending copyright principles, particularly when he began to financially benefit from the work. As we know, ownership in fact is different from ownership of copyright: as a copyright owner, you have the sole, exclusive benefit of copy, selling, redistributing or altering the work. But determining the copyright isn’t as cut and dry as whoever paid for it (in most cases, anyway).

At play in Ms. Maier’s case are two very important principles in law which give artists almost exclusive rights to decide what can be done with their work: the Copyright Act of 1976, and the Visual Rights Artist Act of 1990.

Under the Copyright Act of 1976, copyright protection extends to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Copyright protection is extended to most artistic works, which obviously includes photography. As such, only the copyright owner is entitled to reproduce, distribute, sell, display, or alter the work. The fact that Maloof was doing so without express permission from the copyright holder makes him guilty of infringement.

Right about now, you might be questioning how it could be possible that Vivian Maier can object to what’s happening with her work since Ms. Maier is dead. Under U.S. copyright law, the copyright extends beyond the life of the author: approximately 70 years after her death. At her death, the copyright passes to Maier’s estate. So who owns the copyright in Maier’s work now that she’s dead? Think of a copyright as personal property. Just like one might make plans by leaving a will, one would do the same thing with their copyrights. And in the absence of a living will, the law will do what it always does: it will transfer the deceased’s personal property to his or her next of kin and living heirs. Only after the 70-year term expires – which starts ticking upon the date of her death – will Maier’s work enter the public domain.

For Maloof, finding Maier’s heirs would prove to be an arduous task, since she died unmarried and without any children. In fact, Maloof wasn’t even certain that Maier had been born in the U.S., since recovered tapes with Maier’s voice indicated she had a heavy French accent. Maloof decided to hire a genealogy expert in order to find Maier’s next of kin.

Can a Copyright Transfer to Someone Else?

Once Maloof tracks down the next of kin, what happens next? Does he forfeit his right to distribute the work? Not exactly. Under copyright law, copyright holders can transfer their rights to a third party. A portion of these rights, or the entire scope of rights, can be transferred. Transferring rights do not have to be forever, only for whatever time frame the copyright holder desires, up until such time that copyright expires. A copyright owner can transfer all of his rights unconditionally, in an “assignment,” or only some of the rights, known as a “license.” In fact, many copyright holders transfer rights without even realizing it. For example, showing a work in a gallery grants the gallery the right to publicly display the work and make copies of the work for promotional purposes.

Armed with that knowledge, Maloof was able to track down a first cousin in France named Sylvain Jaussaud, who had no idea he had a cousin, let alone that she could very well be a famous photographer. Maloof made a deal: for a lump sum of $5,000, Jassaud handed over the copyright to Maloof, giving him free reign to print, sell, display and distribute the work. Does Maloof’s copyright issue end there? Not quite.

The Visual Artists Rights Act (VARA) Could Prevent Maier’s Work from Being Seen

Like the Copyright Act, the Visual Artists Rights Act of 1990 affords even greater protections about what can be done with artwork after it trades from artist to dealer. Under VARA, artists have the exclusive rights to:

  • claim authorship
  • prevent the use of one’s name on any work the author did not create
  • prevent use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation
  • prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation

Since VARA is so overarching, it does have its limitations. It applies only to a “work of visual art,” which the statute designates as paintings, drawings, prints, sculptures, and photographs, of a recognized stature, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer. Photographs must have been taken for exhibition purposes only. Posters, maps, globes, motion pictures, electronic publications, and applied art are explicitly excluded from VARA protection. Like copyright law, VARA protection has a certain lifetime: for works created on or after 1990, protection expires with the death of the author but for works created before VARA was enacted receive VARA protection until the copyright ends, which is the life of the author plus 70 years. And unlike copyright rights, VARA rights can only be transferred with express written permission from the artist.

In the Maier case, we need to take a closer look at the artist’s right to claim authorship, and her right to preserve her reputation – even its nonexistence. After all, Maier clearly didn’t claim authorship of these works. Can it be argued that Maier clearly did not create her photos for exhibition purposes, and therefore the works aren’t entitled to protection under VARA? Probably. Especially because a judge would likely find that it’s more beneficial to the public good to let these photos see the light, it’s unlikely that someone would argue that VARA prohibits Maloof from displaying these works.

It’s Not Over Yet…

After Maloof tracked down Jassaud and subsequently took over the rights, the situation got complicated. An attorney by the name of David C. Deal got wind of the Vivian Maier saga and decided to do some digging of his own. He hired his own genealogy experts, who found that a man named Francis Baille was the actual first cousin of Maier. Deal proceeded to sue Maloof, alleging that the rightful copyright owner of the work was in fact, Mr. Baille. Until the situation is resolved, either party is prohibited from promoting the work – a major blow to the art world, since Maier’s work is truly phenomenal.

Though the situation will soon be resolved – there are currently several exhibitions planned of Maier’s work – this case begs the questions: do current copyright laws and VARA rights truly protect the best interests of artists, or is the system taking it too far?

Let us know what you think of the situation and Vivian Maier’s work. Just use the comment area below.

 

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

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  • The thing that bothers me about this is that Mr. Deal just inserted himself in to this out of no where. It would be different if one of the other collectors went to Europe to find another relative with a better claim to the copyrights. Do I understand correctly non of this affects Maloof’s ownership of the negatives. So that even he loses that would only require him to pay a royalty to Mr. Baille in order to say sell prints. But Mr. Baille can’t force Mr Maloof to make the negatives available.

  • Just wanted to say what an excellent article that you composed. Very helpful in trying to understand the law. Nice job!

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