More Vivian Maier

[Alan Edward Klein]

Due to the cost to register and time, I wouldn't bother to register unless I was selling or trying to sell certain photos. My ego isn't that big.

So for an amateur like Maier, no wonder she didn't bother.

 

[BrianShaw]

Due to the cost to register and time, I wouldn't bother to register unless I was selling or trying to sell certain photos. My ego isn't that big.

So for an amateur like Maier, no wonder she didn't bother.

Yup. That part of the copyright process really is focused on commercially valuable images. How or when one discovers what’s worth registering is a real trick it seems.

 

[Duceman]

So for an amateur like Maier, no wonder she didn't bother.

Well, considering she didn't even develop the vast majority of her photos, she couldn't register them as a deposit copy of the photograph is required for registration.

 

[MattKing]

What benefits did the estate and Maier's relatives lose to Maloof because Maier didn't copyright her photos?

You don't copyright your photos - they are already subject to copyright when they are created.
If VM had the photos in a form that would permit registration of their copyright, she (when she was alive) or her estate after she passed could have made use of the additional statutory compensatory remedies when Maloof published her work in breach of her/her estate's copyright interests. She/her estate could have claimed those special damages and lawyers fees much more easily and economically than with the other, often more powerful remedies that are available whether or not the copyright is registered. Those other remedies are usually more difficult and more expensive and sometimes slower to access, but they are still there.
It is basically like the express line at the grocery store. As long as you limit your compensation claims to less than 15 items, you can get through the line quickly and be on your way. There is nothing, however, that stops you from going through the regular, slower line and picking up some candy and a magazine while you are waiting.
(I know, it is a stretch, but I like visuals)
The other advantage to registration is that a prudent publisher can protect itself before publishing material that has been identified (by registration) as belonging to someone else. Sort of like checking the Motor Vehicle Branch to make sure that that 1998 Dodge Ram truck out in the parking lot is actually registered as being owned by the guy at the bar trying to sell it to you.

 

[Alan Edward Klein]

Matt, from what i read, the court's decision is not public how things are split up. Does anyone know exactly what the relatives lost out on because there was no registration? How can the courts keep this secret? How would a new publisher for example know what it's legal rights are if Maloof wanted to use them?

 

[guangong]

A very nice mention of Maier in the Review section of Saturday’s Wall Street Journal.

 

[MattKing]

Matt, from what i read, the court's decision is not public how things are split up. Does anyone know exactly what the relatives lost out on because there was no registration? How can the courts keep this secret? How would a new publisher for example know what it's legal rights are if Maloof wanted to use them?

It probably is none of the public's business how the proceeds are or will be shared. The court's decision will include who the authorized administrator (a trustee for the estate) is. That is who the new publisher would deal with, because they "own" the interests in trust for the beneficiaries.
If the administration of the estate has gone far enough (not likely as it is too early) to allow that administrator to actually sell the interests, split the proceeds and wind up the estate, the purchaser of the interests will be able to show that documentation to prove ownership.
And as for lack of earlier registration of the copyright interests, the estate probably didn't lose much, because in the case of this estate the non-statutory remedies - actual damages and, in particular, injunctive relief and an order for accounting directed at Maloof and others - most likely greatly exceed the statutory ones. In this thread, discussion of the advantages of early registration is probably a distraction, because the much more extensive normal remedies (not the early registration dependent statutory remedies) are the ones in play here.
The administrator probably registered once they were appointed, and in that case the statutory remedies would have been also available for future infringement. That subsequent registration is apparently also necessary as part of the litigation that resulted in the injunctions and other relief against Maloof and others.

 

[Alan Edward Klein]

It probably is none of the public's business how the proceeds are or will be shared. The court's decision will include who the authorized administrator (a trustee for the estate) is. That is who the new publisher would deal with, because they "own" the interests in trust for the beneficiaries.
If the administration of the estate has gone far enough (not likely as it is too early) to allow that administrator to actually sell the interests, split the proceeds and wind up the estate, the purchaser of the interests will be able to show that documentation to prove ownership.
And as for lack of earlier registration of the copyright interests, the estate probably didn't lose much, because in the case of this estate the non-statutory remedies - actual damages and, in particular, injunctive relief and an order for accounting directed at Maloof and others - most likely greatly exceed the statutory ones. In this thread, discussion of the advantages of early registration is probably a distraction, because the much more extensive normal remedies (not the early registration dependent statutory remedies) are the ones in play here.
The administrator probably registered once they were appointed, and in that case the statutory remedies would have been also available for future infringement. That subsequent registration is apparently also necessary as part of the litigation that resulted in the injunctions and other relief against Maloof and others.

But what are the non-statutory remedies if not the statutory ones that copyright registration would have protected? After all , there's no question that Maloof owns the negatives as he paid for them at an auction. So the splitup of any profits to the relatives is based on the relatives' copyright rights - registered and non-registered. But wouldn't that beg the question for the rest of we photographers? Why spend all your time and money registering in advance if the courts will determine you have the registration protection anyway? Wait until they're worth something or you get into a lawsuit.

In this case, however, the court hasn't revealed the split publicly, and how it determined it. So, we'd all have to guess what they might have been or not been had the copyright been registered in advance. Is this the normal practice of probate courts - that splits are kept from the public. After all, at least in this case, Federal law had a huge impact on the determination and outcome. How do these Federal statutes effect local state probate rules? ( I realize Matt you're from Canada where statutes and the Federal system are different. But what're your thoughts on this anyway?)

 

[MattKing]

Alan:
The split between the relatives is according to a set formula, based on their intestate share in the estate. The rules in Illinois are most likely fairly similar to those in my jurisdiction, but I'm not going into that particular rabbit hole, because they probably involve per stirpes division, with the relative shares based in how many inhabitants of each stirp survived Ms. Maier (have fun with the Law French/Latin roots of per stirpes division ). Just understand that some people get more than others, because they are either more closely related to the deceased, or because their portion is a part of a larger share that is shared equally between several others - often siblings.
It is the privacy interests that are protected by the rules - there is no particular public interest in knowing how many second cousins of the deceased end up being entitled to a share, or who they are. The Court isn't there to make public the details of someone's extended family tree.
The beneficiaries themselves share the benefit of those assets according to that formula, but they don't end up owning the assets themselves - the administrator owns them and holds them in trust. The administrator might own them for a long time or might sell them promptly. The terms of the order appointing the administrator may include a requirement that the estate be held open for a certain minimum time. For as long as the assets are held by the administrator, they will most likely generate revenues to the estate, and those revenues are what the beneficiaries share in.
Registration or non-registration is essentially irrelevant to the Vivian Maier beneficiaries, because although registration will help protect against future infringement, and will no doubt have been undertaken by the administrator, the future stream of income or proceeds from the sale by the administrator of the copyright interests won't be registration related. Registration is mostly there to help you go after people who try to appropriate the benefit of copyright from you.
In the Vivian Maier case, the Court has already granted really important and valuable remedies that are worth a lot more than the statutory remedies. The facts of the case made it necessary to spend the time and money to seek those remedies.
For most of us, we would prefer to be in a position to choose to pursue the relatively quick and inexpensive and reasonably generous statutory remedies, or to pursue the potentially slow and expensive but much more extensive remedies that are outside of the statutory remedies. It turns, as do many things, on how much is involved. But if you haven't registered, you don't have the choice.

 

[Duceman]

Am I the only one here who is puzzled by the fascination and concern as to what will happen to Maier's long-lost relatives, whom she herself obviously didn't care all that much about or else she would have simply executed and named them in a will? In that regard, I could care less who ends up with what. Maier clearly did not care all that much about sharing her photography while she was alive, which makes all of this hand-wringing over the issue puzzling. Nonetheless, at the end of the day, as Matt has repeatedly stated, the Maier legal debacle is not about copyright law per se, but instead is one of intestacy and probate. The result of which we will never fully know. Why? Because this entire matter was settled confidentially more than five years ago. See this press release by the law firm representing Maier's estate: The Estate of Vivian Maier and John Maloof Reach Agreement.

From the statement:

In March 2016, Marshall, Gerstein & Borun LLP's Partner Gregory J. Chinlund successfully completed negotiations on behalf of the Estate with Mr. Maloof, resulting in a confidential settlement agreement. In May 2016, the Probate Court of Cook County approved the settlement.

Case closed.

 

[warden]

Am I the only one here who is puzzled by the fascination and concern as to what will happen to Maier's long-lost relatives, whom she herself obviously didn't care all that much about or else she would have simply executed and named them in a will? In that regard, I could care less who ends up with what. Maier clearly did not care all that much about sharing her photography while she was alive, which makes all of this hand-wringing over the issue puzzling. Nonetheless, at the end of the day, as Matt has repeatedly stated, the Maier legal debacle is not about copyright law per se, but instead is one of intestacy and probate. The result of which we will never fully know. Why? Because this entire matter was settled confidentially more than five years ago. See this press release by the law firm representing Maier's estate: The Estate of Vivian Maier and John Maloof Reach Agreement.

From the statement:

Case closed.

Yep. Maloof is getting paid for his hard work, the lawyers are getting paid for their hard work, and the estate is getting paid for... existing. ;-)

 

[BrianShaw]

Yep. That’s how inheritances work.

 

[Sirius Glass]

I did not get paid. Start this thread over!

 

[MattKing]

Thanks Duceman - I had not found that. Depending on the terms, it seems entirely appropriate.

 

[snusmumriken]

Why is nobody interested in her photography?

I am.

 

[Sirius Glass]

I am interested in Vivian's photography but no one wants to talk about it.

 

[George Mann]

I talk about her plenty, and it doesn't involve any inappropriate conjecture concerning any issues she may have had.

 

[MattKing]

I am interested in Vivian's photography but no one wants to talk about it.

Then be the first to start a thread about her photography.
Enough of us have seen it in books and depicted on screen that there should be lots to talk about.
A few members here have even seen prints.
If Bob Carnie was still active here, he could post about making prints from her negatives.

 

[Sirius Glass]

Then be the first to start a thread about her photography.
Enough of us have seen it in books and depicted on screen that there should be lots to talk about.
A few members here have even seen prints.
If Bob Carnie was still active here, he could post about making prints from her negatives.

I done did it.

 

[MattKing]

And we can use this thread to move any posts to that stray from the photography into the controversy.

 

[Sirius Glass]

And we can use this thread to move any posts to that stray from the photography into the controversy.

Thank you. Lets work together to keep the new thread on topic and free of off topic discussions.

 

[MattKing]

It is not impossible that moderators might disagree with Sirius from time to time on whether or not a post belongs in the other thread - after all, there has been much learned about Ms. Maier's life and environment because of the controversies - but the general approach is clear.