Exploring Legal Controversies Surrounding Vivian Maier’s Estate

July 25, 2024

By Tianai Song

A recent exhibition at Fotografiska in NYC ^[1] serves as a poignant reminder of street photographer Vivian Maier’s (1926–2009) hidden talents. Maier’s photographs, often described as visual poems,^[2] capture the essence of humanity in its most unembellished forms, offering an appreciation of the mundane. Her unique perspective on everyday life—whether it be the fleeting expressions of passersby or the intricate details of urban landscapes—reveals a deep-seated connection to the world around her. Through her lens, Maier invites us to see the world through her eyes, to find beauty in the banal, and to appreciate the fleeting moments that define our shared human experience.

Vivian Maier’s enigmatic existence is unraveled in John Maloof’s Documentary, Finding Vivian Maier (2013). This Oscar-nominated film, which has captivated audiences worldwide, delves into the life of a woman who, despite her extraordinary eye for photography, remained an enigma during her lifetime. Working as a nanny for nearly four decades, Maier was entrusted with the care of children from affluent Chicago families. During her off-hours and sometimes with kids in tow, she roamed the streets with her camera, amassing a staggering body of work that would only gain recognition posthumously.

Maier’s story is a stark reflection of the complex interplay between talent, anonymity, and the vagaries of life. Despite her profound artistic gifts, she lived in obscurity and spent her final years in poverty. Her vast collection of negatives—over 150,000 in total—lay dormant, tucked away in storage units she could no longer afford during the last two years of her life.^[3] It was only when John Maloof stumbled upon Maier’s work in a 2007 auction, where her possessions were sold off to cover unpaid storage fees, that the world began to take notice of her genius.^[4] Maloof’s discovery of her negatives, coupled with his relentless efforts to bring her work to light, has cemented Maier’s legacy as one of the most compelling street photographers of the 20th century.

This article traces the legal battles ensuing from the passing of Vivian Maier, and seeks to clarify the critical distinction between IP and tangible property ownership, and encourages artists to create a will to prevent potential conflicts arising from ambiguities in legal rights.

Copyright Protection v. Ownership of Works

Maloof recognized the potential of Maier’s works and sought to showcase them. While Maloof owned the physical copies of the artwork through purchase, he did not have the right to reproduce the work. This is explained through section 202 of the Copyright Act, which provides that ownership of copyright is not equal to the ownership of the material object.^[5] Copyright protects “original works of authorship” with exclusive rights that include the rights to “reproduce the work in copies,” to “display the works publicly,” and to “distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending.”^[6] Thus, if Maloof wishes to publicly exhibit, distribute, or sell the works of Maier, beyond owning the negatives, he needs to own the copyright.

When Maier passed away in 2009, she left no will and no known heirs.^[7] According to section 302 of the Copyright Act, an author’s copyright lasts for 70 after their death. When an artist dies, section 201 of the Copyright Act provides that the ownership of the copyright follows the state laws of intestate succession.^[8] If Maier did not have any heir, the copyright would stay with Maier’s estate. However, if Maier has any distant heir, that person––no matter how distant––will own the copyright for 70 years after the day of her death. Therefore, the only way for Maloof to acquire the copyright to publicly display or otherwise profit from Maier’s work would be through a negotiation with either Maier’s estate or Maier’s heir.

Maloof was able to locate Sylvain Jaussaud, Maier’s first cousin once-removed and believed to be the closest heir to Maier.^[9] Maloof acquired Maier’s copyright from him by paying him $5,000.00.^[10] In 2016, Maloof reached a confidential settlement with Maier’s estate regarding the future exploitation of her works.^[11] Had he not reached a settlement with the estate of Maier and acquired the copyright, merely owning the 150,000 negatives would not have entitled Maloof to unveil Maier’s rare gems to the world; only through such an agreement with the estate can Maloof showcase her work and preserve the legacy of Maier.

John Maloof v. David Deal

David Deal, based in Charlottesville, Virginia, was a former photographer turned law student.^[12] He heard about the Vivian Maier copyright dispute when he was in law school in Pennsylvania.^[13] Unsettled by the idea of outsiders profiting from Maier’s legacy, he embarked on a quest to find Maier’s closest heir after completing his legal studies.^[14] Deal found another cousin of Maier, Françis Baille, whose father is Maier’s grandfather’s brother.^[15] His discovery unveiled another Maier’s first cousin once-removed, who had a claim to Maier’s copyright. Since ownership of copyright typically follows the line of legal heirs, any descendant of Maier’s ancestors is potentially able claim a stake if they are next of kin in the absence of closer relatives. The identification of Françis Baille demonstrates that there could be more relatives in similar or even closer relationships to Maier. Given that Françis Baille was found through genealogical research, it is likely that other relatives might be discovered in the future. This can lead to ongoing adjustments in the distribution of rights and royalties.

Estate of Maier v. Goldstein, 2017 U.S. Dist. LEXIS 191294

In the case of Estate of Vivian Maier v. Goldstein, Maier’s estate initiated legal action against Jeffrey Goldstein, a prominent Chicago art collector, who had previously owned the second-largest collection of Maier’s negatives.^[16] Goldstein sold his collection of approximately 17,500 negatives to a Toronto gallery in 2014.^[17] The estate stated claims of copyright infringement and trademark infringements against Goldstein.^[18] The court opinion addresses claims beyond copyright and trademark, but Count I of the complaint on copyright infringement and Count III of the complaint on trademark are most pertinent to the discussion.^[19] Also note that this decision discussed is reviewing the defendant’s motion to dismiss. Following Ashcroft v. Iqbal, a complaint can survive a motion to dismiss, if it “..contain(s) sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”^[1]

The court ruled that the estate had asserted a valid copyright infringement claim against Goldstein.^[2] In response to the complaint, Goldstein argued that the claim of ownership was invalid because the underlying works—the photographs—had been transferred before Maier’s death, and therefore were not part of the estate”^[3] However, the court found that Goldstein did not begin collecting Maier’s artworks until she passed^[4] and purchasing or physically possessing the photographs did not confer any copyright ownership upon Goldstein.^[5] In illustrating its rational, the court cited a fundamental principle: “The mere transfer of ownership of any physical item, including the original copy or recording of the work, does not automatically grant any rights in the copyrighted work contained within the item.”^[21] Copyright is separate and distinct from the physical ownership of the the work. Consequently, plaintiff’s copyright infringement survived the motion to dismiss.

Additionally, the court examined the trademark infringement claim (Count III) regarding Goldstein’s corporation, “Vivian Maier Prints.” The court held that the name of this corporation could confuse the public into believing that the business was officially affiliated with or authorized by Maier’s estate.^[22] This “likelihood of confusion” was a significant factor in the court’s consideration to uphold the plaintiff’s trademark claim in the motion to dismiss stage of trial. Therefore, the plaintiff’s trademark infringement could proceed as well.^[6]

Judge Durkin denied Goldstein’s motion to dismiss in Estate of Maier v. Goldstein.^[7] In 2019, the case reached a settlement.^[8] As part of the confidential agreement, Goldstein was required to make a payment to Maier’s estate. The specifics of the settlement amount and the terms were not disclosed to the public, but the resolution mandated Goldstein to comply with the agreed payment, thereby concluding the lawsuit.^[23] This case underscores the complexities of copyright and trademark laws, particularly in the context of posthumous rights and the sale of artistic works. It highlights the legal challenges that can arise when determining the ownership of intellectual property and the potential for public confusion in the use of an artist’s name or works by unauthorized parties.

Estate of Darger v. Lerner, 665 F. Supp. 3d 931

Estate of Darger v. Lerner presents a situation similar to Maier’s case. The artist Henry Joseph Darger gained posthumous fame, and following his death, his landlord claimed copyright over his work, subsequently marketing and selling it.^[24] In response, Darger’s estate filed a copyright infringement claim against the landlord.^[25] The court ruled that in the absence of direct evidence of gifting, after Darger’s passing, the landlord did not automatically own the copyright simply because they owned the physical copies of Darger’s works.^[26] The ruling emphasized the importance of clear and documented transfer of rights, illustrating that without explicit evidence or documentation proving that the artist intended to gift the copyright, the ownership remains with the artist or their estate. This case highlights the necessity for artists and their heirs to clearly establish and document the transfer of rights to avoid legal disputes and ensure that the artist’s intentions are respected.

Takeaway: Leave a Will

When an artist dies without a will, and ownership of the artist’s artwork is transferred to other parties, a conundrum arises. The party that owns the physical artwork does not have the legal right to reproduce or distribute the works, as they do not hold the copyright. Conversely, the estate or party that retains the copyright lacks possession of the physical artworks, hindering their ability to exercise their copyright rights effectively. This disconnect creates a complicated legal and practical dilemma, where neither party can fully utilize or benefit from the artworks. The physical owner is unable to legally exploit the works, while the copyright holder cannot access the original pieces to reproduce or manage them. This situation highlights the critical importance of clear legal arrangements and thorough estate planning to ensure that both the physical and intellectual property rights are aligned, allowing for the proper management and exploitation of an artist’s legacy.

Easier said than done, but the takeaway from Maier’s story is simple: leave a will with instructions for those who will be handling your earthly belongings. Had Maier left a will, the copyright to her work would not have fallen into the hands of distant relatives who were unaware of her existence for 83 years, nor would it have sparked a protracted legal battles among various parties eager to profit from her works. A will would have outlined her intentions, preventing the current dispute among multiple players over her artistic legacy. If Maier had preferred her work to remain private or even be destroyed, most likely her wishes could have been respected and honored or at least known (of course there is a matter of unpaid debts). By not leaving a will, Maier inadvertently left her life’s work open to confusion and conflict, illustrating the critical importance of clearly documenting one’s wishes to protect one’s legacy. Fortunately for us, we gained insights not only into the do’s and don’ts of estate planning for artists but also the opportunity to see the world through her eyes.

From the Editors: Legacy of Vivian Maier includes not only her photographs but the lawsuit over copyright in her work. Consider viewing Finding Vivian Maier with the idea of seeing art and thinking ‘art law.’ For additional films and publications related to art law issues, visit our Library.

Suggested Readings:

• Claire Voon, Battle over Henry Darger’s legacy escalates as artist’s estate sues landlords who saved his work, Art NewsPaper (Aug. 3, 2022), https://www.theartnewspaper.com/2022/08/03/henry-darger-estate-lawsuit-outsider-artist-chicago.
• Wenni Iben, “Outsider Artists” and Inheritance Law: What Happens to an Artist’s Work When They Die Without a Will?, Ctr. for Art L. (Nov. 11, 2022), https://itsartlaw.org/2022/11/11/outsider-artists-and-inheritance-law-what-happens-to-an-artists-work-when-they-die-without-a-will/.

About the Author:

Tianai Song is a JD candidate at Benjamin N. Cardozo School of Law. She obtained her BA from NYU in Philosophy and French, and her MPhil from the University of Cambridge in Film and Screen Studies. She has an interest in intellectual property, art law, and film-related legal issues.

Bibliography:

1. Raquel Laneri, In Her First U.S. Retrospective, Vivian Maier Proves to Be Much More than a Street Photographer, ARTNET (June 6, 2024), https://news.artnet.com/art-world/first-us-retrospective-vivian-maier-street-photographer-2497184. ↑
2. Genie Davis, Vivian Maier: Photographic Poetry Swathed in Mystery, RIOT MATERIAL (Dec. 14, 2018),https://www.riotmaterial.com/vivian-maier-photographic-poetry-mystery/. ↑
3. Richard Cahan et al., Vivian Maier: Out of the Shadows (2012). ↑
4. Finding Vivian Maier (Ravine Pictures 2013) ↑
5. 17 U.S.C. § 202. ↑
6. Id. § 106(1), (3), (5). ↑
7. Alexander Herman, The Incredible Copyright Legacy of Vivian Maier, THE INST. OF ART & LAW (May 24, 2019), https://ial.uk.com/vivian-maier/. ↑
8. 17 U.S.C. § 201. ↑
9. Randy Kennedy, The Heir’s Not Apparent, N.Y. TIMES (Sept. 5, 2014),available at https://www.nytimes.com/2014/09/06/arts/design/a-legal-battle-over-vivian-maiers-work.html. ↑
10. Steve Johnson, Vivian Maier Timeline: Breaking Down the Years-Long Battle Over the Photographer-Nanny’s Work, CHI. TRIB. (Aug. 22, 2019), https://www.chicagotribune.com/2019/08/22/vivian-maier-timeline-breaking-down-the-years-long-battle-over-the-photographer-nannys-work/?clearUserState=true. ↑
11. The Estate of Vivian Maier and John Maloof Reach Agreement, Marshall, Gerstein & Borun LLP, available at https://www.marshallip.com/client-success/the-estate-of-vivian-maier-and-john-maloof-reach-agreement/. ↑
12. The Law Office of David C. Deal, Our Firm, The Law Office of David C. Deal, https://www.daviddeal.com/ ↑
13. Natalie Holmes, Copyright, Ownership, and Artistic Integrity: The Quest for Vivian Maier’s True Heir, PIXSY (Sept. 19, 2019), https://www.pixsy.com/photography/copyright-ownership-and-artistic-integrity-the-quest-for-vivian-maiers-true-hei. ↑
14. Jillian Steinhauer, The Key Players in the Ever-More-Complicated Vivian Maier Case, Hyperallergic (Sept. 22, 2014), https://hyperallergic.com/150288/the-key-players-in-the-ever-more-complicated-vivian-maier-case/. ↑
15. Pamela Bannos, Vivian Maier: A Photographer’s Life and Afterlife 273 (2017). ↑
16. Lorraine Bailey, Legal Battle Rages Over Rights to Street Photos, COURTHOUSE NEWS SERV. (Apr. 21, 2017), https://www.courthousenews.com/legal-battle-rages-rights-street-photos/. ↑
17. Steve Johnson, Vivian Maier Timeline: Breaking Down the Years-Long Battle over the Photographer-Nanny’s Work, CHI. TRIB. (Aug. 22, 2019), https://www.chicagotribune.com/2019/08/22/vivian-maier-timeline-breaking-down-the-years-long-battle-over-the-photographer-nannys-work/?clearUserState=true. ↑
18. Estate of Maier v. Goldstein, No. 17 C 2951, 2017 U.S. Dist. LEXIS 191294, at *2 (N.D. Ill. Nov. 20, 2017). ↑
19. Id. ↑
20. Id. ↑
21. Celeste Bott, Collector Gets ‘One Final Shot’ to Pay Famed Artist’s Estate, LAW360 (Feb. 21, 2024), https://www.law360.com/articles/1805099/collector-gets-one-final-shot-to-pay-famed-artist-s-estate. ↑
22. Estate of Darger v. Lerner, 665 F. Supp. 3d 931(N.D. Ill. 2023). ↑
23. Id. ↑
24. Id. ↑
25. Ashcroft v. Iqbal, 556 U.S. 662, 662 ↑
26. Estate of Maier v. Goldstein, 2017 U.S. Dist. LEXIS 191294, *13 ↑
27. Estate of Maier v. Goldstein, 2017 U.S. Dist. LEXIS 191294, *14 ↑
28. Estate of Maier v. Goldstein, 2017 U.S. Dist. LEXIS 191294, *14 ↑
29. Estate of Maier v. Goldstein, 2017 U.S. Dist. LEXIS 191294, *14 ↑
30. Estate of Maier v. Goldstein, 2017 U.S. Dist. LEXIS 191294, *20 ↑
31. Estate of Maier v. Goldstein, 2017 U.S. Dist. LEXIS 191294, *26 ↑
32. https://www.law360.com/articles/1805099/collector-gets-one-final-shot-to-pay-famed-artist-s-estate# ↑