Photography

Sobel v. Eggleston: Color Me Amused

eggleston_d

Collector Jonathan Sobel appreciates William Eggleston’s photographs. He must: he owns at least one hundred ninety of Eggleston’s prints. So it came as a bit of surprise when Mr. Sobel decided to sue Mr. Eggleston and his trust last year.

The lawsuit was spurred by Christie’s sale last March of new digital prints of Mr. Eggleston’s photographic negatives, most of them dating from 1970-6, with two of them from the 1980s. Some had never been printed at all before. Several, however, were digital reprints of works that Mr. Sobel himself owned in a limited edition that Mr. Eggleston printed in 2008-2011. The new digital prints offered by Christie’s are much, much larger: 112 cm x 152 cm (44 inches by 60 inches). The 2008-2011 limited edition prints are, on the average, 16 inches by 20 inches.

The argument seems to be that when an image is reprinted in another edition that the original “limited edition” is no longer limited. At the heart of Mr. Sobel’s complaint is the following:

A collector pays a premium for a limited edition work, because that designation expressly and impliedly represents to the collector that the limited edition work will not be reproduced beyond the number set forth in the series of that particular limited edition.

Translation: Knowing that photographs can never be considered unique objets d’art like paintings, the institution of artificial scarcity for prints is what makes photography collectible in financial terms.

Before I level any real opinions on the matter, allow me to get the legalese out of the way. According to the New York Arts and Cultural Affairs Code under which this suit falls:

“Limited edition” means works of art produced from a master, all of which are the same image and bear numbers or other markings to denote the limited production thereof to a stated maximum number of multiples, or are otherwise held out as limited to a maximum number of multiples.

Further definitions involved are “print,” “reproduction,” and “multiples” which are defined thus.

“Print” in addition to meaning a multiple produced by, but not limited to, such processes as engraving, etching, woodcutting, lithography and serigraphy, also means multiples produced or developed from photographic negatives, or any combination thereof.

“Reproduction” means a copy, in any medium, of a work of fine art, that is displayed or published under circumstances that, reasonably construed, evinces an intent that it be taken as a representation of a work of fine art as created by the artist.

“Visual art multiples” or “multiples” means prints, photographs, positive or negative, sculpture and similar art objects produced in more than one copy and sold, offered for sale or consigned in, into or from this state for an amount in excess of one hundred dollars exclusive of any frame or in the case of sculpture, an amount in excess of fifteen hundred dollars. Pages or sheets taken from books and magazines and offered for sale or sold as visual art objects shall be included, but books and magazines are excluded.

Mr. Sobel’s lawsuit alleged that Mr. Eggleston and his estate devalued his own earlier purchase of limited edition prints by committing “fraudulent misrepresentation, negligent misrepresentation, unjust enrichment, and promissory estoppel.”

Judge Deborah Batts disagreed as she dismissed Mr. Sobel’s case. She wrote, “Although the Reprints are identical in image to the Limited Edition works, they differ in size, medium, and production date. In addition, they were digitally manufactured from computer-generated files or scanned old prints and were physically printed on an inkjet printer at some point in or after April 3, 2011.”

MemphisThe crux of the legal complaint is that Mr. Sobel bought limited edition prints that are devalued by further prints being made in a different process at a different size. But Mr. Eggleston made no further dye-transfer prints at the size of the edition he bought. That edition remains limited and numbered as originally agreed. New York law states that when such works are originally sold, certain information must be divulged. To wit, the law requires a statement of artist’s name, artist’s signature, medium or process used in creation of multiple, use of master, time produced, and size of the edition (cf. NY ACA Law 15.03). The implication is that, in asking for these things, the law treats any variation of these six qualities as not of that edition. This probably seems obvious, but it was not obvious to Mr. Sobel, though he certainly must have known the law–and if he did not, surely his lawyer did.

Furthermore, Judge Batts notes that

In addition, the use the present perfect tense in [the Law]…makes clear that the works did not create a warranty barring future production of multiples…. Instead, it constituted a warranty that the fraction’s denominator represented the total number of multiples existing at the time of sale.

In other words, a “limited edition” warranty means only that the current edition has been limited and does not bar future editions, limited or otherwise, from being made. One can easily recall Edward Weston or Ansel Adams or Paul Strand producing multiple limited editions of their works. The folks at Artinfo discuss Carleton Watkins having made new prints with new technology from old images exactly as Mr. Eggleston has. Again, surely Mr. Sobel and his counsel know this. Furthermore, Mr. Sobel is far from a photography noob. Though he made his money with Goldman Sachs, he has donated a baker’s dozen of Mr. Eggleston’s photographs before to the Whitney Museum and put up a sizable contribution of money to sponsor the Whitney’s 2009 exhibition of Eggleston’s work.

What I detect here is, if you will forgive the crudity, a certain amount of size envy. Mr. Sobel seems to object to the digital prints being sold at Christie’s because they are larger versions of images he already “owns”–if indeed one ever owns an image. While I generally do not like to speculate on such matters, I surmise that had the digital prints been made simultaneously with the dye-transfer prints and both offered as limited editions, no one would even flinch at the irony. I would even hypothesize that had the digital prints been made in a limited edition of, say, 4 X 5 prints Mr. Sobel would have prided himself on his ownership of the superior, larger, dye-transfer version. That the digital prints have been made so recently after the 2008-2011 edition is also doubtless part of the anger behind the lawsuit.

But that anger is misplaced. The nominal issue of Sobel v. Eggleston is whether or not an artist can create further images based upon work already created. The law explicitly states that one can; the historical practice of such a right by artists is far from new.

I do not have any love for art collectors. I have written many words against the entire enterprise and have certainly no plans of changing that attitude soon. In that sense, I have no pity whatsoever for Jonathan Sobel. Anyone collecting photographs for any reason other than that they like photographs is barking up the wrong tree, even moreso if they are ignorant of the laws concerning such things. The question remains, however, if Mr. Sobel is such a fan of Mr. Eggleston’s, and not merely a fan of the possession of Mr. Eggleston’s works and their aura of prestige and hipness which they confer upon him, why not just chalk it up to supporting the artist? Nothing prohibits Mr. Sobel from buying the new inkjet prints.

morals_of_vision_fThat a collector should be upset that an artist is devaluing collected works by releasing more images into the art world strikes me as a dismal comment on that art world. This is not an art world that loves art but rather one that loves acquisition. Mr. Sobel bought his print of Mr. Eggleston’s “Memphis” for $250,000. The larger digital print of the same image sold at Christie’s for $578,500. To an aesthete who removes art from financial matters, these sums are irrelevant: good for the artist on commanding such a price. To a collector worried about investment, these sums represent possible monies gained or lost. Fine for the investor, largely unimportant to the artist. To yield even the slightest bit of control over that value to the original artist must sting the virility of the art collector something terrible, and yet there it is.

Behind all the legal pretense, the lawsuit has little to do with art or multiples or reproductions or any technical matters. This is not an issue where artists and collectors are looking for clarity–the law could hardly be more clear. Instead, the lawsuit is a probe, a test of the collectors’ power to control the market values of art. On the street level where I walk, it is a completely nauseous attempt. The last thing contemporary art needs is more separation of art from its actual public–not the manufactured public of millionaire patrons, but the actual public who needs art and craves beauty to stave off the mundane horror of life in the 21st Century. Photography by definition should be the most accessible art and most likely to reach that wider public. Yet over the past ten years, art marketeers have made photography every bit as inaccessible as oil paintings. Edward Weston nudes have sold for $1.6 million. Edward Steichen’s The Pond-Moonlight for almost $3 million. These are both from early in the last century, but even fairly recent works are commanding absurd prices: Jeff Wall’s photograph Dead Troops Talk has coasted on Susan Sontag’s approval to an astronomical price of $3,666,500, just behind art-market darling Cindy Sherman’s Untitled #96 (1981) at $3,890,500 and Andreas Gursky’s 1999 photograph Rhein II at $4,338,500.

When Robert Hughes looked upon the art market in his The New Shock of the New in 2005, he noted the exorbitant rise in the art market in both volume and price. “$100M for a Picasso removes the work from public currency,” said Hughes. “It says, ‘Look, I can only belong to the super-rich, and all other Picassos are just the same.’ This alienation of the work from the common viewer is actually a form of spiritual vandalism, a cultural obscenity.” That cultural obscenity has absorbed the art of photography at a time when photographs themselves are more ubiquitous than ever. One need only look at Instagram or Facebook for a confirmation of the fact.

If John Berger is right that when images are no longer unique and exclusive, “art objects” must be made mysteriously so, it makes perfect sense that collectors and dealers wish to preserve this hegemony of art. Fortunately, the law is against them. But this is only a matter of time, too.

Omar Willey was born at St. Frances Cabrini Hospital in Seattle and grew up near Lucky Market on Beacon Avenue. He believes Seattle is the greatest city on Earth and came to this conclusion by travelling much of the Earth. He is a junior member of Lesser Seattle and, as an oboist, does not blow his own trumpet. Contact him at omar [at] seattlestar [dot] net