Dear Drew,
There was some lengthy writing about the Eggleston matter on The Online Photographer. You can probably Google for it.
What we really don't know is the terms of the initial issuance. New York (where the suit has been filed) has some serious laws on the books about limited editions; they were the first state to pass them. What they do is make it clear that a pronouncement of a limited edition is indeed a binding contract. If you tell someone that some photograph will be issued as an edition of 15 16x20 dye transfer prints, say, you sure as hell better not produce more than 15 prints. It is fraud.
But announcing such an issue places no other restrictions on the use of the photograph. You are enjoined from producing prints that are substantially similar (a gray area that, of course, some folks have abused) but substantially different prints are entirely fine, whether they are produced in a different limited edition or in unlimited numbers. Changing the medium of reproduction **and** producing the prints in a substantially different size, which is what occurred in this case (not a “slightly different” medium or size) is entirely acceptable and a well-established standard practice. You, the artist, are not obliged to do so, of course, but you are entirely free to do so.
It should be noted that the plaintiff in this case is a well-established collector, a definite 1%-er. He entirely knows what the customs and rules of the game are. He cannot plausibly claim he was in any way misled.
The real matter under question, which we don't know the answer to, is what the original terms of issuance were: was it stated that the photograph would be issued as an edition of so many dye transfer prints of such and such a size or that it would be ONLY issued as an edition, etc., etc. if the former, it's the standard limited-edition I described in the earlier paragraphs; if the latter, then producing superlarge inkjet prints of the same photographs is a clear violation of contract.
It does not matter who is doing the reissuing of the photograph or who is doing the printing. The original limited-edition contract is binding on the photograph's rights, not its owner, and is conveyed with those rights. If there's a usage restriction on the photograph, it's enforced on third-party licensees, heirs, etc.
By the way, the common interpretation of limited-edition law is that the artist DOESN'T get to print a replacement one if someone's original purchase got destroyed. They only get to make so many prints. If some of them get destroyed with time, then that's the way of the world. Of course, many artists ignore that and will happily do a favor for a favorite client. If I did limited editions, I probably would and I would just caution them not to tell anybody. It would be considerate of me… But it wouldn't be legal!
Not so incidentally, the aforementioned 1%-er is going to have a very difficult time proving any material loss. There's a pretty large body of market data to support the conclusion that what Eggleston did didn't diminish the value of the original vintage dye transfer print one bit. If anything, it may have enhanced it. The dynamics of the art market are very odd.
In any case, I shall be very interested in seeing how this plays out in court. Throw some seriously high-powered attorneys at a case like this, and there is no assurance that new precedents won't be set. Which, I suspect, is what the 1%-er is hoping for.
pax \ Ctein
[ Please excuse any word-salad. MacSpeech in training! ]
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