A Transatlantic Battle Over Ownership of Vivian Maier’s Photographs

Kat friend Andy Johnstone informed us about this article in The New York Times regarding the battle over copyright ownership in the works of a French-American photographer Vivian Maier. A warm Katpat to Andy, thank you!

Vivian Maier was born in New York City from a French mother and an Austrian father. She lived most of her life in Chicago, working as a nanny for well-to-do families, and she died in Illinois in 2009. While a nanny, she took thousands of photographs, most of them in black and white, but she did not make them public. She developed only of few of her pictures, whether she did it herself or gave the rolls to professionals. However, most of the pictures were never developed during her life and Maier kept thousands of undeveloped rolls of films, which followed her through her moves. She eventually stored them in a storage facility.

When she failed to pay storage rent, her belongings, including her photographs, films, and negatives, were auctioned off in 2007 and were bought by several bidders. One of the bidders, John Maloof, acquired some 100,000 negatives for $380. He did not know anything about their author but her name. Two years later, he stumbled upon her obituary when searching for information about her online, and was then able to learn more about her life. Another man, Jeffrey Goldstein, owns about 20,000 of Vivian Maier’s photographs.

Mr. Maloof published some of her photographs online, which gathered a lot of interest. Vivian Maier’s photographs have been shown at several exhibitions and art galleries around the world, from London to LosAngeles.

Mr. Maloof started only recently to sell Maier’s photographs, and he stated in an interview that he is selling pictures in order to fund his curatorial work, as scanning the thousands of photographs to compile an archive is time consuming. He also co-directed a movie about Vivian Maier which was released last year.

As reported this month by The New York Times, Mr. Maloof researched Maier’s ancestry. He found out that her closest relative, Sylvain Jaussaud, was living in France, and paid him an undisclosed amount for the rights to Maier’s works. However, attorney and former photographer David C. Deal made some research on his own and found out about another French relative, Francis Baille, who accepted, as reported by The New York Times, to seek to be recognized as Vivian Maier’ s heir under American law. To be recognized as such may take several years. The public administrator’s office for Cook County, in Chicago, where the artist died, has created a Vivian Maier estate which is represented by a Chicago law firm. Its attorneys have already contacted a Toronto gallery to prevent further sales of Maier’s work. As reported by The New York Times, the letter sent to the gallery stated: “We are investigating the potential misuse and infringement of copyrighted works whose rights are held by the estate.”

There Are All Kinds Of Nannies

This may become a well-fought battle. Vivian Maier’s works are protected by federal copyright even though they were never published and the author did not assert any rights over them nor register them. Many of her works were created before the 1976 Copyright Act, at a time when the 1909 Copyright Act required several formalities to be met for the work to be protected by federal law. Unpublished works were, however, still protected by common law copyright, which was perpetual as long as the work remained unpublished. Under the 1976 Copyright Act, unpublished photographs can be registered by copyright, but Miss Maier did not register her works after the 1976 law came into force on January 1, 1978 either. However, the 1976 Copyright Act automatically gave federal copyright protection to works that were created but neither published nor registered before January 1, 1978. The protection lasts for the life of the author plus 70 years. It also gives automatic protection for life plus 70 years to works which have been created on or after January 1, 1978, as long as they have been fixed, which is the case for all the photographs, fixed on the negative films.  

One can wonder if the photographer herself would have been happy to have her work made public. Why didn’t Vivian Maier develop her works? Was it a lack of money, or is it because she did not want her work to be made public? When she gave her pictures to be developed, she did not give her real name, and instead provided several fake names on the pick-up slips.

The U.S. recognizes only limited moral rights under the Visual Artists Rights Act (VARA). Photographs in a single copy or a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author are protected by VARA, which provides for a right to attribution and a right to integrity, but these rights belong to the author only. Vivian Maier’s photographs are sold in limited editions through the Howard Greenberg Gallery in New York, and each photograph carries the “[p]hotographer’s collection stamp signed by John Maloof with date, print date, and edition number in ink.” 

Such sale would probably not be authorized under French copyright law, which recognizes a perpetual moral right, transferable upon death, for all original works. Under French law, only the author of a work has the right to publish it, and this right of deciding the first publication is transmitted to the heirs if the work had not been published during the author’s lifetime. The French putative heir may argue that French law applies to this case, and assert his moral rights over Maier’s works.

Meanwhile, it may become increasingly difficult for the public to view Maier’s work. Perhaps, however, this is what what she would have preferred.