Who owns that photo anyway? Five photographers and the French Minister of Culture learn the hard way to read the fine print

 

 

Many of us enjoy selling framed prints of our own photographs, but what do you do when one of them turns up for sale at an auction? Is it right that the original buyer can sell it, or is it still your property? It's a thorny question at the heart of an imbroglio over the recent sale of a collection of photographs in Marseille, France, and it's a tale full of some interesting characters.

 

Auction house owner Damian Leclere

Among them is Damian Leclere, whose belief that auctions should be "fun and open to all," has made his Maison Leclere into one of France's most successful auction houses. This fall Leclere planned to hold a major auction of a collection of some 230 photographs, ranging from daguerreotypes to collodion glass plates to lots of modern prints. He expected to sell the rare glass plate images for between $10,000 and $15,000, and get $200 to $2,000 each for the modern prints. But the one thing he didn't expect to get was embroiled in the brouhaha that erupted around the sale of some of the images.

Enter into our story five photographers who, in 2006, were hired by the quasi-governmental Agency for the Development and Promotion of Heritage in Provence-Alpes-Côte d'Azur. They were a cross section of Europeans -- two Italians, Gabriele Basilico and Massimo Vitali, Spaniard Jordi Bernardo, Englishman John Davies and French photographer Bernard Plossu. They were assigned by the Agency to shoot all over Provençe and the Côte d'Azur (the French Riviera) for a large exhibition titled "Monuments and Landscapes." The photographers signed on, went to work, the prints were made and the show opened to great acclaim. The photographers got paid, and after the show the Agency put the photographs in a nice, safe warehouse.

The call to auction. Fast forward to 2013, and the Agency -- now facing budget cuts -- realized that it could no longer afford to continue to warehouse these photographs nor the hundreds of other items it had accumulated over the years. The Board of Directors of the Agency decided that they could reduce costs and make some badly needed money by selling its collection of images of Marseille.

And who better to do the job then open-to-all Damian Leclere? Leclere happily accepted the job and set the date for the auction for October 12, 2013. In a press release he extolled these images as "an inventory of atypical monuments of Provençe and their integration into the urban landscape."

 

A print of this photograph of the French Riviera from "Monuments and Landscapes" was put to auction by Maison Leclare at the request of the Agency for the Development and Promotion of Heritage in Provence-Alpes-Côte d'Azur -- without the photographer's consent. But did the photographer have the right to block the sale? Photo by Massimo Vitali.

The photographers find out. Several weeks before the auction, however, photographer Bernard Plossu returned to France and learned of the auction, which included several of his prints from "Monuments and Landscapes." His reaction was shock: "Nobody warned us then that the photographer had no right to follow his work. I put my heart and my body into it and I do not understand how you can sell photos without notifying the author. It was a heritage work; we would like it to stay a heritage."

Plossu then contacted the other photographers, and they sent a joint letter to Leclere requesting cancellation of the sale. But Leclere was unmoved.

The photographers get help. Enter the next set characters -- France's Society of Authors and the Visual Arts of the Still Image and the Union of Professional Photographers. Quoted in the press, representatives of these organizations said that they "discovered with amazement" the sale and denounced "the dispersion of an important heritage photographic collection." For these two groups, it was "a fait accompli," and the photographer's rights were "severely affected" and they said the photographers "have a legitimate sense of an infringement of their moral rights as defined by the code of intellectual property."

The groups, too, contacted the Development Agency asking for cancellation, but the Agency stood its ground while Leclere replied philosophically that he was sure of the sale was legal. He said: "I believe that this is not a release, but a transmission to collectors that will highlight these works."

The photographers go to the top. When all else failed, the photographers went right to the top, to one of the stranger characters in this strange story, the French Minister of Culture, Aurélie Filippetti. For those not familiar with Mme. Filippetti, she has earned a lot of bad press since she took on her portfolio. In one typical faux pas this September, she was invited to Visa Pour l'Image in Perpignan for a tour of the exhibit, 'The Impossible Peace,' led by photographer Don McCullin. However, she arrived so late that most of the dignitaries gave up waiting and went home. Her reputation has sunk so low that her friend, the writer-philosopher Bernard Henri-Levy, had to defend her against charges that she "has somehow become one-of-the-worst-culture-ministers-of-recent-decades."

Trying to be of help, the day before the auction Minister Filippetti wrote to the Agency for Development requesting the auction's suspension, "aware of the arts, culture and heritage of this situation… the minister has mobilized its services for an amicable solution to be found with the owners of the works." She hinted at court action.

The photographers lose (and the fine print prevails). Through all of this, Hervé Passamar, the director of the Agency for Development was both surprised and bemused at the storm. In particular he did not understand the photographers: "It intrigues me that they do not read their contracts. The Agency is not a museum and has no public collection." He added that: "The board of directors of the Agency relied on its status under the 1901 association law and its ownership of the acquired works, to decide on the auction… the contracts signed at the time by the photographers did not limit the use of works or prohibit resale."

The storm passed, and on October 12, 2013, Maison Leclere held the auction. For the five photographers, and for the rest of us, it is perhaps a lesson about making sure you read the fine print and know what you are selling.