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Photography Tue Aug 13 2013

The Curious Case of Vivian Maier's Copyright

By Julia Gray

Photo by Vivian Maier, courtesy of Ron Slattery
A photo by Vivian Maier, courtesy of Ron Slattery
Vivian Maier found fame after her death through the efforts of the collectors who own most of her prodigious work. But depending on how U.S. copyright law is interpreted, the ultimate benefactor of Maier's fame may turn out to be the state of Illinois.

Born in 1926 in New York City to a French mother and an Austro-Hungarian father, Vivian Maier was a nanny by trade. She worked for several families in the Chicago area, and was known to be an extremely private person who her charges say seemed to bask in the shroud of mystery surrounding her. Although she was rarely without a camera, snapping photos while on duty and on her off days, her employers knew little about her talent as a photographer.

The sale at auction of her unpaid storage lockers in the fall of 2007 was the key to her discovery as an artist, but it wasn't until just before Maier's death in April 2009 at age 83 that her identity was learned. Her photos were soon electrifying the art world with their gritty depictions of life on the streets of Chicago and other cities.

Today, the majority of Maier's work -- prints, Super-8 films and thousands of negatives -- is owned by three men: Jeffrey Goldstein, John Maloof and Ron Slattery. Both Goldstein and Maloof have sold prints in limited editions through galleries.

Slattery only has the original prints and some negatives that he bought at the 2007 auction. Goldstein and Maloof have obtained a great deal more of Maier's artistic output, as well as cameras and other personal items, from her estate. They both sell limited edition prints through galleries. Goldstein has also published a book of Maier's photos, and Maloof is working on a documentary about her discovery and legacy, which will debut at the Toronto International Film Festival in September.

This is where the legacy of Maier takes an interesting turn. The legality of these new print editions of Maier's photos may be in question.

"In Illinois, if a person dies without a will, their property goes to their closest living relatives. But if they literally have no living kin anywhere in the world, then the decedent's property will 'escheat' to the State of Illinois. That rarely happens, though, because the law is written so that the property will go to the decedent's relatives, even if they are very distant," said Steven Dawson, a trusts and estates lawyer with Bryan Cave LLP. 

Maier died without a will and no known heirs, which, according to Illinois law, makes her possessions the property of the state. However, the probate court papers for her estate make no mention of her photography equipment or artwork, so the state of Illinois may not have been aware of that material. The prints and negatives sold at auction before her death are free from any claim from the state, but anything sold after her death may be less safe.

If the state of Illinois does decide to claim Maier's copyright, several scenarios could happen. First, the state could do nothing, which would allow the owners of her work to continue with their ventures. Second, if the state decides it is the rightful owner of Maier's work, cease and desist letters will be sent to the current owners explaining the laws of succession, how the state is now the main beneficiary, and that any selling of her work needs to stop and all profits made would need to be paid to the state.

Another option is the state could decide that instead of a cease and desist order, the current owners may continue selling her work but royalties would be collected by the state. In this instance, the state could pit the owners against each other, depending on who will pay the state more royalty money. Finally, if the current owners don't cooperate, the state could sue them in federal court for ownership. However, before a lawsuit could proceed, the state would have to obtain the copyright.

Furthermore, the probate papers do not mention Maier's intellectual property -- her copyright on both printed and unprinted photos. Nor is there any copyright of her work registered with the United States Copyright Office. Depending on how the law is interpreted, the copyright on Vivian Maier's photography, her life's work, may now belong to the state of Illinois. Or maybe not.

"It's not as simple as making one or two calls because if it was, John and I would've been done with this, real quick and real cheap and inexpensively. It's a complex thing. No one person seems to have the same answers," Goldstein said.

The last sentence has some truth to it: None of the probate, estate or intellectual property attorneys contacted for this story had the same answers with regards to who gets what when a person without a will or heirs dies.

However, the one aspect that remained consistent throughout has been the issue of copyright. According to Dawson, the federal copyright law clearly states that the mere ownership of an object like a painting — the physical embodiment of a work — does not convey any right to the copyright in that work. In other words, just because you own a picture doesn't mean you're allowed to make copies and sell them, unless you have express consent of the artist or copyright holder. The same applies to negatives; owning a negative doesn't entitle you to print from the negative unless you also own the copyright.

A color self portrait by Vivian Maier; photo courtesy of Ron Slattery
A self portrait by Vivian Maier; photo courtesy of Ron Slattery

Goldstein also mentioned the orphan works law as a way around copyright. Put simply, an orphan work is a copyrighted work for which the owner of the copyright cannot be found. However, according to experts, since Maier's copyright was not registered with the U. S. Copyright Office it's a stretch to apply this particular statute to the current situation.

The same could be said for Illinois Self-Service Storage Facility Act, with particular attention to Section I, which states:

A purchaser in good faith of the personal property sold to satisfy a lien, as provided for in Section 3 of this Act, takes the property free of any rights of persons against whom the lien was valid, despite noncompliance by the owner with the requirements of this Section.

Here, the word "rights" is a broad term, and copyright is not mentioned. Also, according to experts, since this is a state law and the copyright law is a federal one, the state law cannot pre-empt federal law.

Industry observers estimate that the value of Maier's work — prints, negatives, film and book rights, Super-8 movies, exhibits — range from the mid-six figures to the tens of millions of dollars. As far as the state of Illinois is concerned, the revenue made from Maier's work could help alleviate some of the state's budget woes over time.

John Maloof said he believes that Maier's worth is "nowhere near the high end of what's been quoted." Maloof said a non-disclosure agreement with Goldstein prevents him from discussing the copyright and other business issues in detail, but he did say that research was done with regards to the copyright "to get what we're doing in the clear."

Slattery, at this point, is only selling Maier's vintage photographs and not prints from the negatives because he's "not comfortable with the current situation" with regards to the copyright. Estate liquidator Roger Gunderson, who originally purchased the first five of Maier's seven storage lockers, said he would consider going after Maier's copyright if the odds of him obtaining it were "better than 50 percent." Since Gunderson was the first to own Maier's work, he could consider citing the aforementioned Section I of the Illinois Self-Storage Facility Act as part of his case. His rights to Maier's copyright could possibly trump those of Goldstein's, Maloof's or Slattery's.

According to Cook County State's Attorney spokesman Stephen Campbell, the Vivian Maier case is "a private, civil case it is not something the state's attorney would be interested in unless an heir came forward. They only deal with cases where charges are brought." In order for that to happen, an heir would contact the police which could prompt an investigation, and if any type of malfeasance was found, charges would then be filed with Cook County State's Attorney financial crimes department.

If the state did step in and decide to investigate, Goldstein believes it would be "a very sad day if the state gets a hold of it."


Julia Gray is a freelance journalist who has written for the Beachwood Reporter, Time Out Chicago and She is also the occasional co-host of the Internet radio show "The Matthew Aaron Show" where she has interviewed folks like humorist Kelly Carlin, actors Timothy Busfield, Craig Bierko, and producer Mark Canton. Feel free to check out her blog.

Previous coverage of Vivian Maier on Gapers Block: Getting the Right Angle on Vivian Maier

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randolf hurts / August 13, 2013 11:34 AM

Why would it be a very sad day if the state gets a hold of it?

I think a far better tribute to the late Vivian Maier would be a free museum for all to enjoy her works. Instead of three dudes selling everything off piecemeal, making money of someone else's work.

Ralph / August 13, 2013 6:36 PM

Good story. If Illinois jumps into the Grab it will make for interesting performance art which might have pleased her.

Eddie Major / August 13, 2013 10:19 PM

Does Maier truly have no living heirs, no matter how distantly related?

Or is this a case of the relevant parties having a strong motivation not to properly look for them?

The bottom line is, don't print and sell photographs you don't own.

auntipode / August 13, 2013 10:47 PM

It seems many owners of property believe they have the copyright to the image of their property by virtue of owning the property. I wonder how many actually own such a copyright rather than an architect. And, what if the architectural design is a derivative work?

Tim A / August 13, 2013 11:04 PM

@ Auntipode - Pictorial representations (including photographs) of architectural works are freely permitted for such works which a normally viewable or accessible from a. Public place

JM / August 13, 2013 11:21 PM

Interesting story, and definitely an issue we'll start seeing more often given the length of copyright terms. Just one nitpick - what orphan works law? Efforts to pass one at the federal level have gone nowhere for years. Unless there's an Illinois statute that applies a similar concept of ownership or control to intangible property. Or unless by "orphan works law" Goldstein meant there'd simply be no known person to enforce a copyright against him..

Michael / August 14, 2013 10:52 AM

The sale of her effects occurred before her death. In that case, wouldn't it be abandoned property, rather than estate?

JM / August 14, 2013 4:52 PM

@Michael - the sale of the effects and ownership/control of the copyright are totally separate per 17 USC 202. Think of how you can own a copy of a DVD, but the copyright is still not yours, i.e. it's still copyright infringement if you reproduce, distribute etc. new copies.

RichD / August 15, 2013 11:58 AM

Why would it be a very sad day if the state gets a hold of it?

Because its like giving a crackhead drugs to fuel its addition. The state would lease it out for 75 yrs, for a fraction of its worth!

Andrew Huff / August 16, 2013 1:07 PM

Julia Gray appeared on WBEZ's "The Morning Shift" Friday, Aug. 16 to discuss her article and the implications of the situation.

Listen here.

keith / August 17, 2013 9:05 AM

Least she won't have to bother worrying about it. And then cities will probably start up a storage sale review dept., so they get some extra cash.

John Goldsmith / August 17, 2013 5:34 PM

It would be very sad indeed. While Chicago and Illinois are wonderful places, I highly doubt the the governments of either would have championed Maier's photos so professionally and responsibly, as those who discovered and presented her work to date. I say that as a former resident of Chicago, a street photographer, and a fan of Vivian Meier's photographs.

Nima Taradji / August 19, 2013 6:58 AM

The State does not engage in roaming the storage facilities for bargains and so it is true that the work would not have been discovered by the State. However, now that the cat is out of the bag, the Storage Hunters (that's all these folks are) deserve a nice finder's fee after the State asserts its right on behalf of the people and takes control of the work. State, ultimately, is in a better position to curate, present and preserve the work for the benefit of the people.

Suzinne / November 13, 2013 8:01 AM

As for John Maloof saying he doesn't believe Ms. Maier's work will be going for the upper amounts some have suggested? Is Mr. Maloof all of a sudden an expert on photography? Last I heard he was a real estate broker.

To these eyes, Vivian Maloof's work rates right up there with Walker Evans.

Michael / January 3, 2014 7:31 PM

I find the whole idea of others people who had nothing to do with Ms. Maier in the first place, launch a copyrights grab campaign in order to do nothing but make money off of her.

As a recording artist and musician myself, I would NEVER let ANYONE control my artistic interests if I certainly had the capacity to do so. It is quite apparent. Vivian Maier did not have this luxury whilst alive. Who are these three men to have the audacity to copyright someone else's work without their consent? The absurdity of all this is incredibly abhorent and unethical.

The correct road to pursue is public domain and shown in as many museums as possible. This would be a much fitting tribute to her work and her memory than anything these three opportunists have positioned themselves for.

David R. / May 5, 2014 7:23 AM

It seems quite clear to me that a small group of people are planning to make a lot of money out of someone else's intellectual creation.

J. Maloof bought a large part of the negatives in 2007. But since then, I have not seen the amount of art and scientific publications that we the People could expect from such a tremendous discovery. Such an "oeuvre" will never happen twice on Earth.

This event is similar to someone finding the tomb of Jesus-Christ, and trying to set up a theme park around it, because "hey, it's just like any other stone, I bought it during an auction!".

Chris Knipp / May 10, 2014 10:11 PM

It seems possible identifiable relatives of Vivian Maier through her mother might exist in France.

Chris Knipp / May 10, 2014 10:12 PM

It seems possible identifiable relatives of Vivian Maier through her mother might exist in France.

Stephania / September 1, 2015 3:43 AM

re; "The sale of her effects occurred before her death. In that case, wouldn't it be abandoned property, rather than estate?" #1 No because she did not sell the items and #2 she was suffering from mental illness which very likey (absolutely) caused her to be delinquent on the payment of the storage locker, which caused the sale. It would be really nice to see the state benefit from this and put this towards education and see that some of it benefits healthcare for those with mental illness. These guys should not benefit from such great art work over and over that is not their just because they were lucky enough to buy some negatives. Galleries should be ashamed of themselves for even participating in this arrangement.

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Architecture Tue Nov 03 2015

Paul Goldberger Describes the "Pragmatism and Poetry" of Frank Gehry's Architecture in His New Book

By Nancy Bishop

Architecture critic Paul Goldberger talks about Frank Gehry's life and work in a new book.
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Steve at the Movies Fri Jan 01 2016

Best Feature Films & Documentaries of 2015

By Steve Prokopy

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