Ansel Adams Trust Sues Guy Claiming To Have Found Long Lost Adams' Negatives For Selling Prints

from the copyright-or-trademark? dept

Wed, Aug 25th 2010 6:43pm — Mike Masnick

Well, well. A few weeks back, we wrote about the story of a guy who had bought some old glass negatives at a garage sale, and recently had them authenticated as being done by Ansel Adams. What interested us was the question of whether or not the guy, Rick Norsigian, could legally sell prints from the negatives. It seemed quite clear that doing so would almost certainly be copyright infringement. Purchasing negatives does not give you the right to print the works, unless you separately buy the associated copyrights. So, at first, I wondered if Ansel Adams' heirs would even let the guy sell prints. Of course, soon after the news came out, the Ansel Adams trust insisted the whole thing was a fraud -- and given some of the recent stories questioning the validity of certain art authentication practices -- perhaps their argument has merit.

Either way, it appears that Norsigian has barged forward with a plan to sell prints from the negatives, and reader Tom sends over the news that the Ansel Adams Publishing Rights Trust is now suing him for it. While I haven't seen the actual lawsuit, the reporting on it notes that it covers: "trademark infringement, false advertising, trademark dilution, unfair competition and other claims." Missing from the list? Copyright. Making a copyright claim would be tantamount to admitting that they believed the images were legit. The Trust does make an argument that could leave it open to a copyright claim down the road, should the negatives be declared from Adams', but it may somewhat undermine their own argument in that:

The lawsuit further says that even if they were Adams' negatives, the prints and posters being created from them aren't the photographer's works, "but are derivative works at best."

"Mr. Adams was fond of likening a negative to a composer's score and the prints to its performance -- each performance differs in subtle ways," the lawsuit said. "The photographic prints and posters offered for sale by defendants ... are not an Ansel Adams 'performance.' "

While derivative works can be infringing, by saying they're "derivative at best," you could make an argument that such prints are fair use transformative works, rather than copies -- though it might not fly.

Either way, I can't see any legal way that Norsigian can sell these prints: if they're not Adams', then calling them Adams' opens himself up to all those charges in the case, with false advertising being a big one. If they actually are Adams' negatives, then he has no copyright on them and again should not be able to sell them.

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Filed Under: ansel adams, copyright, negatives, photographs, trademark

32 Comments

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:Lobo Santo (profile), 25 Aug 2010 @ 6:46pm

I pray
I pray I find no valued treasures from the past. Given today's legal structures, having found such a thing would mean insane legal battles or perhaps jail time.
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trix, 25 Aug 2010 @ 7:53pm

"If they actually are Adams' negatives, then he has no copyright on them and again should not be able to sell them."

Why on earth should I not have the copyright on something I legally acquired, nobody claimed copyright on *and* the copyright wasn't exempt from the buying-conditions?

Can somebody explain to me why this ain't another example of the copyright laws being royally broken?
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- Mike Masnick (profile), 25 Aug 2010 @ 9:59pm
  
  Re:
  Why on earth should I not have the copyright on something I legally acquired
  
  You buy a book, you don't get the copyright on the story. You buy negatives, you don't get the copyright on the photos.
  
  nobody claimed copyright on *and* the copyright wasn't exempt from the buying-conditions?
  
  None of that matters.
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  - Lutomes (profile), 25 Aug 2010 @ 11:05pm
    
    Re:
    You buy a book, you don't get the copyright on the story. You buy negatives, you don't get the copyright on the photos. Agreed on Buy a book, don't own the story. I would also agree on Buy a photo (print), don't own the "picture". But the post by Ted.E raises a point - what if there was a contract (oral or written) by Adams passing along the copyright with the negatives. I know that if I give someone source code, master files, negatives or another "raw" medium it is with implied that they would be able to make copies. This doesn't have a legal base, but the purpose of negatives is to make copies. If you gave or sold someone the right to make copies you would as part of the transaction give them the negatives too.
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    - Mike Masnick (profile), 25 Aug 2010 @ 11:56pm
      
      Re: Re:
      But the post by Ted.E raises a point - what if there was a contract (oral or written) by Adams passing along the copyright with the negatives.
      
      Then someone would need to show up with that contract or it's meaningless. But since the photos were never published and there appears to be no registration of copyright on these photos, the law is what the law says: copyright belongs to the Adams' heirs until 2054 -- assuming the negatives really are Adams'.
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  - trix, 26 Aug 2010 @ 1:40am
    
    Re: Re:
    "You buy a book, you don't get the copyright on the story. You buy negatives, you don't get the copyright on the photos."
    
    I buy somebody's manuscript of a book (since negatives are like manuscripts, an unfinished product) at a garage-market, there's no legal contract saying I don't buy the copyright... and I still don't have the copyright?
    
    Honestly seems a bit adventurous to me.
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    - nasch (profile), 26 Aug 2010 @ 9:22am
      
      Re: Re: Re:
      Correct, buying a copy (even the original) doesn't automatically transfer any copy rights to you.
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    - Mike Masnick (profile), 26 Aug 2010 @ 10:19am
      
      Re: Re: Re:
      I buy somebody's manuscript of a book (since negatives are like manuscripts, an unfinished product) at a garage-market, there's no legal contract saying I don't buy the copyright... and I still don't have the copyright?
      
      That's correct. Buy the manuscript at a garage sale and you still do not own the copyright.
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- Mojo Bone, 26 Aug 2010 @ 6:44am
  
  broken
  Easily. I have music on my hard drive that's not meant to be made public under my name. (or at least, not the name I use, here) I do many sketches that I keep for reference; they aren't made to be sold, and to do so would significantly water down my output. In short, great art is often in the editing; to distribute my lesser works devalues all of my work.
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  - trix, 26 Aug 2010 @ 7:06am
    
    Re: broken
    But you didn't sell/have somebody else acquire it, right?
    Or strictly told, whoever got a recording/work of yours that's not for publication, that it's not for distribution in an implied and/or explicit way.
    
    Am I assuming wrong?
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Ted E. Bear, 25 Aug 2010 @ 8:46pm

"Either way, I can't see any legal way that Norsigian can sell these prints: if they're not Adams', then calling them Adams' opens himself up to all those charges in the case, with false advertising being a big one. If they actually are Adams' negatives, then he has no copyright on them and again should not be able to sell them. "

If the prints were never published how could they have a copyright? Think that's a key concept that is missing in your analysis. If Adams never copyrighted them and no one in the family knew about them. How do we know that he didn't take them and then gave them to someone to do as they pleased. How do we know that he didn't give them to someone in payment of a debt? Hundreds of scenario's of why someone might have them. But since Adams has been dead 26 yrs. We will never know. But what we do know... if true is they have never been published or copyrighted and then never printed. The idea that he can't is no longer clear in the murky waters of our legal system.
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- Mike Masnick (profile), 25 Aug 2010 @ 10:03pm
  
  Re:
  If the prints were never published how could they have a copyright? Think that's a key concept that is missing in your analysis.
  
  From: http://copyright.cornell.edu/resources/publicdomain.cfm
  
  Never Published, Never Registered Works:
  
  Life of the author + 70 years
  
  Adams died in 1984. Hence, copyright is his heirs until 2054 according to copyright law.
  
  Yay copyright law.
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  - Mojo Bone, 26 Aug 2010 @ 6:51am
    
    Re: Re:
    I can only imagine the chilling effect on what used to be youthful exuberance in recording studios when recordings of the Beatles' belching and farting are offered for sale. I wonder what McCartney sounds like while eating a sandwich.
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Anonymous Coward, 25 Aug 2010 @ 9:28pm

Valued Treasures From The Past
These days, what with copyright law having gone mad and historical preservation societies having gone mad as well, anyone finding any "valued treasures from the past" would be wise to just quietly destroy them. Give yourself a lot less trouble. Plenty of other people have been able to figure that strategy out for themselves. Have you noticed how a vacant building on a block of land that developers might want, always gets trashed comprehensively by vandals? Those are some hard-working vandals, it's almost as though somebody was paying them. Maybe trumping people's property rights with other laws is not such a good idea, after all.
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Jay (profile), 25 Aug 2010 @ 10:26pm

So what's next?
I swear, they might as well have a law called "Kitchen Sink".

That's exactly what people throw around when you try to do something against copyright/trademark/patent law these days.
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Anonymous Coward, 25 Aug 2010 @ 10:31pm

Protagoras and Euathlus did it first
To my non-lawyerly eyes, these claims of trademark violation seem tantamount to admission that these plates were not made by Adams, which would invalidate future claims of copyright. Likewise the argument that a print made today from an Adams plate is not "an Adams" cuts both ways: if it's not an Adams then surely he's free to make it, copy it and and sell it as his own work.

But the law is what it is, not what storytellers want it to be. They can sue now for trademark infringement on the claim that Adams didn't make the plates, then sue later for copyright infringement on the claim that he did, and maybe win both cases (or lose both). A lawyer with sufficient b-- *ahem*, brass could conceivably put both in the same suit, except that the family doesn't want to feed the "lost Adams" buzz. And while Adams certainly felt that the making of the master print from the negative was a vital part of the creative process (and he sure took enough pains with it), other artists are much more mechanical about that step; heaven help us if the courts try to tailor the law to the artistic sensibilities of the individual photographer.
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- ChurchHatesTucker (profile), 26 Aug 2010 @ 9:50am
  
  Re: Protagoras and Euathlus did it first
  "...if it's not an Adams then surely he's free to make it, copy it and and sell it as his own work."
  
  Nope. It's still under *someone's* copyright. It becomes a classic orphan work at that point. Nobody knows who actually 'owns' it.
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mike allen (profile), 25 Aug 2010 @ 11:12pm

ever heard the phrase finders keepers they were purchased therefore they should be his to do as he pleases. I I buy a paiting from a garage sale that turns out to be a monet I have the right to sell it so should be the same here.
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- martyburns (profile), 26 Aug 2010 @ 4:29am
  
  Re:
  I think he could go ahead and resell the negatives, its the prints he can't do anything with.
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- Mojo Bone, 26 Aug 2010 @ 6:57am
  
  Re:
  Had Adams sold the plates as something other than junk, you'd have a point; the buyer can do as he pleases, so long as he doesn't claim he's selling Ansel Adams' work rather than Ansel Adams' trash.
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Anonymous Coward, 26 Aug 2010 @ 12:11am

OK, so if this guy that owns the negatives cant sell prints, and the estate cant sell prints without the negatives (obviously) isnt this another situation where copyright is locking down so that the public will never see it, paid or otherwise?
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- Mojo Bone, 26 Aug 2010 @ 7:01am
  
  Re:
  It's a pretty good bet that these images were never meant to be seen. I'm thankful there wasn't an internet when I came of age; I'd be famous for all the wrong reasons...
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Anonymous Coward, 26 Aug 2010 @ 12:46am

ok, problem solved, he should back down from selling any prints, lay out the negatives he owns, and smash them to a million little pieces

letting everyone know, they are being destroyed because of the children/estate of adams and the ridiculous length and passing on of rights of things they had nothing to do with
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- Anonymous Coward, 26 Aug 2010 @ 10:14am
  
  Re:
  If he films the process, he would be able to sell that as his own work.
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Poddys (profile), 26 Aug 2010 @ 12:50am

Seems to me that the logical thing to do if he wants to make money out of these prints is to sell the original negatives.

Even if the Ansel Adams Trust didn't want the glass negatives (and I think they would be foolish not to check them out and buy if they seemed genuine), I am sure that someone would pay a good price for them at an auction.

The finder still then has a great story about finding the negatives, and I would assume a decent sum from the sale, plus no hassles over trying to market the prints.
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Anonymous Coward, 26 Aug 2010 @ 12:53am

The plan:
1. Buy negative plates of questionable origin on the cheap at garage sale.
2. Have negatives "declared" authentic Adams.
3. Hype negatives via new media on interwebs.
4. Sell prints for what they are: photos ~perhaps~ taken by famous dude.
5. Sell the negatives.
6. ???
7. Profit!
8. Hope to God that the real photographer doesn't come forward and sue you.
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G Thompson (profile), 26 Aug 2010 @ 2:59am

Actually all he needs to do is say that he doesn't know whether they are or they are not Adams negatives.. and that he is selling the prints as actual prints of the negatives without claiming who photographed them, but instead selling them as is.

It is then up to the market (consumer) to say whether they are this or that, known or unknown.. He might make less money. But he will make a LOT more than $30 he paid for them.

If someone then states. Oh I bought an Adams print.. that's their problem. And it is then a burdon on the Adams Trust to prove they are Adams' or not. If not they then have very weak trademark/dilution since the original seller does not state they are or aren't.

The other way to do this is to photograph the actual negatives.. then sell the negatives of the negatives (Yes people analog film). Up to the buyer to make prints or not then.
Ooops... did I just make a convoluted legal logic bomb? My bad ;)
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- Dementia (profile), 26 Aug 2010 @ 4:28am
  
  Re:
  The only problem with your plan is the original photographer, whether it is Adams or someone else, still holds the original copyright on the images. So he would still be opening himself up for a copyright suit by selling prints of the negatives, regardless of who the photographer was.
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John, 26 Aug 2010 @ 3:04am

WAIT IT OUT
Wait another 43 years, do a years worth of publicity stunts etc hyping them (kind of like Al Capones Vault that Geraldo did) and then on the 70th anniversary of his passing sell the crap out of them and retire.

Or pass them to your kids...
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digirebel, 26 Aug 2010 @ 6:09am

In the photography world, copyright is obtained the moment you capture the image, what registering them does for you is that it allows to to pursue statutory damages, actual damages AND LEGAL FEES...whereas a non-registered image can only get you actual damages....which one would a lawyer rather work on...which one has more bite..
Unless copyright is expressely transfered, it remains with the photographer, regardless of who owns the negatives..its amazing how many folks think that because they have a image they can do what ever they chose with it, including scanning it to make more copies..you can with written permission from the photographer...or in this case from the estate..
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Pixelation, 26 Aug 2010 @ 7:21am

Perhaps he is simply trying to get Adams' estate to say they really are Adams' negatives. At that point back down from the lawsuit, pay off the heirs, sell the negatives and Profit!
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Markus (profile), 26 Aug 2010 @ 6:44pm

But how are these derivative?
So, the negative of the picture, which you get BEFORE you get a finished print, is derivative of that finished print? Now I've heard everything. This argument is baseless. IF the negatives are in fact of photos taken by Adams, then they are the original work. Looking at things this way, any final product of Adams' is derivative of the negatives. This is fine from Adams' perspective, since he would have been making a derivative work based on HIS technically prior work. If you have a problem calling Adams' actual final product "derivative," then these are much closer by analogy to an early draft of a publication than they are to any sort of "derivative."
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