"Took a sow’s ear and made a silk purse out of it, is what they done."

July 14, 2021 10:17 AM

Who Owns Mike Disfarmer's Photographs? Strangers made his small-town portraits famous in the art world. Decades later, his heirs want control of the estate. (SLNew Yorker)
posted by box (21 comments total)

The article ended after two paragraphs for me on iOS, so paywall might be an issue: the archived version contains the complete article (but no images save the first).
posted by Ten Cold Hot Dogs at 11:27 AM on July 14, 2021

Our copyright laws are so broken. After the man is dead, the intellectual property of his photographs should belong to all of us.

It may annoy the man's grand-niece that someone else is profiting of her dead distant relative's work, but the solution is not for her to profit off of it, but instead for the profiteer to lose his monopoly.

That would have the side effect of allowing the people who own an original copy of his work to have the maximum ability to reap the reward of the physical entity (the photograph) they bought ages ago -- instead of an art world guy knocking on doors and buying the photos for far under the market value, increased transparency due to the IP entering the public domain would undercut the art-world middleman's first mover advantage and make it more likely the original owners of the photographs would be able to sell the works at the highest market value.
posted by lewedswiver at 11:38 AM on July 14, 2021 [9 favorites]

I find the part about the actual negatives pretty bizarre. In terms of prints, yeah, probably the relatives own the copyrights stupid though it is, but the idea that someone would have a claim on abandoned property nearly *70* years later? Even if they could get through the abandoned property part of that, don't states usually have some kind of good faith law where if you brought something in reasonable belief that the other person had the right to sell it, it can't be seized back?

Now I'm wondering if some ambulance chaser is trying to hunt down James Hampton's relatives right now...
posted by tavella at 12:18 PM on July 14, 2021 [2 favorites]

I mean, I am side-eyeing the galleries and book publisher a bit, because while I do think a lot of copyright law is stupid I am pretty sure those entities knew what the rules were and apparently decided to ignore them. But I just cannot have any sympathy for people who couldn't be bothered to clean out their "dear uncle's" studio for years and now many years later their descendants are upset that someone found value in the junk the relatives didn't give a shit about. It isn't even as if someone found a Rembrandt in someone's abandoned storage locker, what value beyond the minimal that the items had was created by other people's work long after they were salvaged.
posted by tavella at 1:30 PM on July 14, 2021 [10 favorites]

This is such a mind-blowing article to me. I'm from the part(s) of Arkansas mentioned in it, and Disfarmer is part of the background of life there. I also went to school with Peter Miller's kid and was baffled by the Group, which is kind of surprisingly not scrutinized in this article because it is treated as a very curious thing by the locals (it was incredibly secretive the entire time I was growing up, and is itself worth a venture into what's been written about it since it's connected to so many of the emergent barons of the merchant upper class in Arkansas, for want of a better way of putting it). And even for all that contact I had no idea about the connection between Miller/the Group and Disfarmer's photo rights.

Wow. What a story.
posted by late afternoon dreaming hotel at 1:47 PM on July 14, 2021 [11 favorites]

I am really curious about how vernacular photography is declided to be fine art, reminding me not only of Maier but for example the French fashion house agnes b finding the photos of Mailk Sidibe. agnes took small, vernacular photos, cleaned them up, blew them up, and introduced them into a eurocentric mode of image production. I think Disfarmer is a good photographer, but seperating himself and his culture, treating him as an exotic, and ignoring familair ties, is really important to note here. The idea that Arkansas didn't know what they had until it was redeemed by New York has really deep class divisions (similar to Maier)--that all of the reasons that people take photographs are sublimated to this kind of Mamon of "fine art"--the Disfarmer have aesthetic value, but also have social and poltiical capital that have been ignored. I wonder how many other brilliant studio photographers or vernacular photographers exist, known in their home town, but not been redeemed?

I mean also copywright is bullshit, but allowing working class people to get theirs....there's something there.
posted by PinkMoose at 2:19 PM on July 14, 2021 [3 favorites]

Not to shanghai the thread, but I went to a Q&A with Dan Hurlin a few years back about his puppet show about Disfarmer. We watched his documentary and then asked questions, but the puppet work was astonishing. I have a surprisingly visceral response to the word "disfarmer" which is strange and entirely due to this experience.

https://www.nytimes.com/video/multimedia/1231546487330/disfarmer.html
https://www.danhurlin.com/disfarmer-2009-1

I effing love puppets, and it's brilliant. Ok, back to the regular human stuff.
posted by pol at 2:30 PM on July 14, 2021

The idea that Arkansas didn't know what they had until it was redeemed by New York

...but is also apparently true in this case. Well, at least the mayor thought they were worth the effort to store in his garage rather than let them be sent to the dump, but the relatives in question showed no interest when they sat in his studio for two years after his death, or in the mayor's garage for 12 years more, or when the New Yorker turned up and started a local paper and published the photos asking for identifications and sending out copies to families.

(also, man, copyright for for old photographs is a mess, if this piece is correct.)
posted by tavella at 4:43 PM on July 14, 2021 [1 favorite]

I.e., the photographs are probably under copyright until 2029... unless they were published back in 1973, in which case they are under copyright until 2068... unless there wasn't a copyright notice in which case they are public domain... except does it count as published if it wasn't the person holding the copyright who authorized it? I suspect not! And then there might be individual exceptions for any photos that were published during Disfarmer's lifetime, if you could find evidence of such.
posted by tavella at 4:58 PM on July 14, 2021

Everything in copyright law is arbitrary, but it's pretty clear that going back to a single 28 year term would make the US a better place in almost every case.
posted by eotvos at 5:24 PM on July 14, 2021 [7 favorites]

My wife and I started this whole thing. We’re mentioned in the article. Hopefully the family is able to rectify the way Mike Disfarmer has been portrayed by those profiting from his work. Seems like a theme with outsider artists. Marginalize them as people for profit.

From the stories I’ve heard personally from the relatives, Mike Disfarmer was a kind, friendly uncle. Not the curmudgeon as portrayed by the galleries and book folks.

Honestly this is the main thing the family is concerned with.
posted by Bighappyfunhouse at 6:02 PM on July 14, 2021 [13 favorites]

It depends on value right--the idea is that those plates were in storage, which is true--but prints from that plate are on the walls of family homes, or in family albums, and handed down from family, along with stories and narratives. And we hear the world mouldering, but we dont h ave back up on that.
posted by PinkMoose at 9:21 PM on July 14, 2021

> I wonder how many other brilliant studio photographers or vernacular photographers exist, known in their home town, but not been redeemed?

Lots, probably. The question is how big the body (or bodies) of work is (are) and how much of it can be exhibited/printed/bound for profit. The aforementioned Maier had enough to produce several of each and continues to be milked for profit to this day.

If the body of work is large enough then there's bound to be some good stuff in there. If it's not big enough then strong curation can probably find some sort of direction to milk it anyway. And if it's not big enough or strong enough then just tack on some conceptual theme/direction and write a statement to hype it up.

I think every single medium to large photo festival I have been to over the previous five years has featured at least one exhibition of vernacular photography. I understand the historical importance of some of the works, and the nostalgic appeal in others, but I see its use as pretty cynical in most cases.

As to the question "Who Owns Mike Disfarmer's Photographs?" - the physical prints? Whoever bought them, if they sold them on to a collector then that's too bad you didn't see any value in what you had and they're owned by the collector(s) now. The originals and the copyright? The photographer is dead, they should be in the public domain unless the photographer expressed otherwise. I agree copyright is utterly broken here.
posted by lawrencium at 5:24 AM on July 15, 2021 [3 favorites]

...it's pretty clear that going back to a single 28 year term would make the US a better place in almost every case.

Just to clarify, I trust you mean time of death, not time of creation. It can take decades for real money to come in creative works. You don't want to snatch that cash from someone in their declining years.

For more on the subject, Harvard Law has some suggested reading. Europe (via France) has some pretty artist friendly laws concerning resale of visual arts (droit de suite).
posted by BWA at 6:25 AM on July 15, 2021 [2 favorites]

Everything in copyright law is arbitrary, but it's pretty clear that going back to a single 28 year term would make the US a better place in almost every case.

I really don't understand this or copyright of artistic work in general.
If my ancestors bought a farm in the 1600s, I could still own that. If they started a factory in the 1800s, that could belong to me. If members of my family invented the recipe for Coke or Kentucky Fried Chicken, their heirs could profit indefinitely. If they invented Calvin and Hobbes or wrote "Purple Rain," not so much. If these were Andrew Carnegie's heirs, no one would complain that they didn't really care about steel until they found out it was worth money.

The idea that art should be considered somehow a public good and that the government can then say, "we decided this should belong to the people" sounds like some straight-up Soviet Union shit to me. I get that it would be impossible to figure out who should own the rights to Hamlet now, but we're talking about much more recent work with relatives who remember the artist.
posted by FencingGal at 6:47 AM on July 15, 2021 [1 favorite]

FencingGal

I think it's the concept that all art is derivative. Having a copyright last the artist lifetime + some amount of years after gives time for the person and their family to profit from the work (as we all think they should), but having that copyright expire gives others the chance to take the work and create new, but derivative things. I mean, I think we wouldn't even have half the TV or movies or books we have now if people weren't allowed to do that. 'Wicked' the books and Broadway play couldn't have existed without the 'Wizard of Oz' which fell out of copyright before then.

In the case of Carnegie, I think it's different because anyone can take steel, an actual object, and make art out of the material, which is an idea expressed through that material.
Carnegie's heirs can't sue to gain control over the idea.

I think it's really an argument about how long after the death of the original artist(s) that the copyright should continue. Immediately after death, 20 years, 50, 70, even 100? How about until there are no direct decedents?

Personally I do think art, books, ideas...they are a public good. Stuff, like land, metals, oil, are the building blocks of how we advance the human race, but the ideas are the blueprints. Those blueprints show us through pictures, words, emotions how we can be better, how we used to be so much worse, so we HAVE to be better. I feel that after a certain amount of time, those ideas need to belong to the human race as a whole to remix and update and continue to use to make the world better.
posted by sharp pointy objects at 7:56 AM on July 15, 2021 [1 favorite]

Thanks for your thoughts, sharp pointy objects. My steel comparison was not great (my point was more that relatives of artists are supposed to be somehow above caring about the money unlike relatives of literally anyone else who makes money). I think the recipe comparison is more apt. I vaguely remembered that there's a copyright on the Big Mac (from my days working at McDonalds when we were told we could not add ingredients to a Big Mac for legal reasons), but when I tried to look it up, I just got a bunch of articles about how they lost their trademark in the EU. So if I invent the Big Mac, why is that more worthy of enriching generations of my relatives?

And it still seems generally unfair to me that heirs can endlessly inherit some products of my work, but not others. While it's true that remixing ideas and making changes to previous artwork can be considered a benefit to humanity, if there's a market for it, what you're going to get is a lot of Calvin and Hobbes porn, and why can't the heirs say that's not OK 100 years from now? Does Pride and Prejudice and Zombies really make the world a better place? (I know some people will answer yes to that last one.)
posted by FencingGal at 1:25 PM on July 15, 2021

The reason is that copyright is a fake property. That is, the reasons we have laws about real property is that only a limited number of people can exercise full use of real objects and real estate at the same time, thus ownership has to be limited and laws are needed to resolve the conflicts. But ideas and copies are unlimited, and thus our ancestors could own a bow but they couldn't stop other people from seeing it and making their own. However very recently (in our history), countries decided they wanted to encourage the creation of more ideas, and to do so they would create fake properties, which the government would treat, for a very limited time, as the sort of exclusive item that real property is. But only for a _limited time_, after which the fake property would return to the million year old world of free ideas and spawn yet more creations.

So if someone is down with, for example, creating their own language, their own new type of writing system (alphabet, syllabary and logographic are already taken!), their own new format of grammar and literature, etc., they might have an argument for eternal ownership, but as it is, they are riding on other people's creations and what they bring new is only the very tiniest fragment of that, and thus theirs goes back to the same sea they pulled 99.99 of their creation from.

But anyway, that's not relevant here, as I don't think anyone is disputing that in fact the family would inherit copyright, and that part of the petition to reopen probate will likely succeed. Their problem is that it is almost worthless in itself. Oh, it's great for controlling what images people put in books, so it might be helpful with controlling the narrative. And they can probably extract some monies from any copyright violations they can convince a judge should be included in the statute of limitations. But that's not going to be a huge amount of money.

On the other hand, the negatives as real property and art objects are still extremely valuable without the copyright, to the tune of likely 8 figures if recovered from the museum and cannily dispersed over time to the art market, as well as a longer term income stream from prints, since high quality scans could be retained after the sale. Thus the other half of the petition. And having read said petition, I suspect it's an extreme longshot, since they have to convince a judge that the final accounting of the administrators means that they thought Disfarmer had the equivalent of several hundred thousand in the bank and had dealt with zero other property... as opposed to that figure being the result of six months of liquidating the estate so that the proceeds could be fairly distributed among the intestate heirs of the time, who numbered about 25 per my Ancestry check.

I can understand taking the shot and longing after the possibility, but well, I wish my grandmother hadn't given away her part of Ocean City Maryland, but it doesn't mean I'm going to get it back :)
posted by tavella at 8:33 PM on July 15, 2021 [1 favorite]

But anyway, that's not relevant here, as I don't think anyone is disputing that in fact the family would inherit copyright

We do have at least one person on this thread saying they shouldn't own the rights as well as the statement that copyright is bullshit: After the man is dead, the intellectual property of his photographs should belong to all of us.

But ideas and copies are unlimited, and thus our ancestors could own a bow but they couldn't stop other people from seeing it and making their own.

The recipe for Kentucky Fried Chicken is considered intellectual property that, per this New York Times article, is granted proprietary rights in perpetuity. So this doesn't quite explain it either.
posted by FencingGal at 8:12 AM on July 16, 2021

Only if they keep it secret; that's what trade secrets *are*. As if the bow-maker always used it in secret or with people who had sworn into the secret on penalty of whatever, and just came back to the camp with the meat.
posted by tavella at 8:36 AM on July 16, 2021

The reason is that copyright is a fake property.

Alternatively, tangible.

Consider copyright as a best effort arbitration solution/compromise between creators and those who think the results should be free for all because easily reproducible. A poor argument, this last, to my mind, but reality and human nature being what they are, creators are always going to get paid by a small fraction of the actual audience.

For Steven King, that's easy to live with, for a lot of others, well....
posted by BWA at 6:59 AM on July 20, 2021