July 2016

Parallel Lines


 He came out of nowhere. He was a joke. The political pundits laughed at him. He had a loud mouth which was always full of crazy talk. He had grandiose economic and infrastructure plans. These plans were weak on details, but he was single-minded in his consistency: he would make the country great again. Meanwhile, the pundits kept laughing.

He was a patriot. Given all the circumstances, this was a little odd. His ties to places outside the country were strong. He offered himself for leadership. He took control of the party. He would lead.

The political establishment was astonished. This cannot be. They shunned him. They sought to distance themselves from him. They refused endorsements. No--we'll get him to toe the line. A lot of what he says is just electioneering. He can't possibly mean what he says when it comes to minorities. We'll get him to shape up.

The candidate takes a step back; agrees to work with a member of the establishment.

Finally, power comes to him. He does exactly what he said he would do.

Trump 2016?
No. Germany: 1925-1933.

Hitler was an unemployed ex-corporal after WWI. He was a foreigner who did not even have German citizenship. That did not keep him from condemning Jews, whom he viewed as foreigners. He took control of the Nazi party. At first, just as George Stephanopoulous laughed at the thought of a Trump candidacy, the German political establishment did not take Hitler, his ravings, or his party seriously.

Trump is the anti-immigration candidate but both of his wives were immigrants. He has a particular hatred for Mexicans, a hatred so great he proposes to build a wall between the two countries.

President Hindenburg said that he would never appoint the Austrian corporal as chancellor of Germany. Franz von Papen, a member of the German aristocracy, convinced Hindenburg that he could control Hitler. Convinced by von Papen, Hindenburg made the appointment.

Hitler initially agreed to work with von Papen, but soon out-maneuvered him. Once Hitler took power, his ravings became law.

The Republican party establishment decided that they could not ignore the will of the voters and so Trump has been given the nomination.

Now their hope is that they can control him, that his words can't be taken literally, that he's not such a bad guy.

All of these arguments were made before.

And all of them were wrong.

Letters and Photographs: Copyright Questions


A few months ago I wrote about the legal controversy and the unusual circumstances surrounding the recovery of a letter sent by Neal Cassady to Jack Kerouac. The document, known as the "Joan Anderson Letter," had been lost for years, supposedly dropped into the San Francisco Bay by Gerd Stern, a poet who received the letter from Allen Ginsberg, who was acting as literary agent for Kerouac.

The legal mess resulting from the recovery of the letter has wisely been settled. The recovered letter was offered for auction at Christie's in June, 2016. I say "wisely" because a Florida court had determined that the will of Kerouac's mother was a forgery. Were the Kerouac Estate to return to court, they would have to labor under the burden of that finding. My guess is that the Estate didn't want to revisit the charges of forgery and so wisely made a deal with the Cassady heirs. The rights of the person who recovered the letter have not been publicly disclosed. With a reserve price of $400,000, there is enough money to take care of everyone. Unfortunately, the bidders did not meet the reserve.

I thought the issue of possession/publication of old letters was unlikely to be revisited since people don't normally communicate by writing each other long letters anymore. Ten to fifteen page letters are unusual, so disputes over rights to and in letters are unlikely to be seen again, right? I was wrong.

Vivian Maier was a reclusive nanny who worked in Chicago from the 1950's to her death in 2009. Using a twin-lens medium format Rolleiflex, she took thousands of photographs in her spare time. During her lifetime, her photographs were never published, but she kept her negatives, renting storage space when there was no more room for them. She died alone, impecunious and intestate. After her death, there was no one to make payments on her storage locker and, just as is seen on television shows such as Storage Wars, the contents of the locker were sold at auction. 

The buyers soon realized the artistic value of the over 30,000 negatives and prints they had purchased. They found a distant relative of Vivian's and purchased the publication rights from him, even though he did not know that Vivian had even existed. They made a successful film about Vivian (Finding Vivian Maier) and her work; showed her photographs at an exhibition and sold prints. 

Another competing photographer, for reasons not entirely clear, flew to France and found yet another remote relative of Vivian's who didn't know she existed either. Because of Vivian's intestacy, no probate proceedings were opened at the time of her death because she had no discernible assets. No court had ever ruled on the right to publish Vivian's photographs, so this year the two competing distant French relatives squared off in Cook County Circuit Court.

Seeing that the result of this legal battle was anything but assured, the parties decided to compromise. Though the terms of that compromise are not clear, the fact that the case was settled means that we will see more of Vivian Maier's remarkable photographs in the future. 

What seems to have been missed by everyone are the rights of the State of Illinois. Property belonging to an heirless intestate is escheated to the State. Potential heirs have only a limited time to file. Do States have IP/intestate property offices? Certainly states like New York and California should have them. Previously this was never an issue, but it is clear that this is a collateral consequence of the extension of copyright under the Sony Bono Copyright Extension Act. States should pay attention to intestate intellectual property. 

Well, I thought, it is unlikely that there will be many more cases like this. After all, I reasoned, photographs, like letters, are nowadays digital files. Negatives are no longer made. From now on, the right to publication is all that matters. 

Not so fast: the other day I was in the library and came across a book edited by Jean-Yves Berthault, a retired French diplomat. The book is a collection of letters sent by a woman to her married lover. The book's title in French opens the copyright door in a way the English title does not. The French title is Mademoiselle S: Lettres d'Amour 1928-1930. The English title is The Passion of Mademoiselle S. The English title, of course, fails to mention these crucial dates, since letters written from 1928-1930 are not yet in the public domain.

Berthault writes that he discovered the letters while helping "a friend clear out an apartment with a forgotten cellar." He also states that he purchased the letters from the friend. It is not clear at all whether the friend is related to Mme. S. At least one newspaper has questioned whether or not the family of Mme.S was afforded a say in the matter.

As the Vivian Maier case shows, it is not particularly difficult to find distant relatives in France if you care to look for them. And relatives are not necessarily in favor of publication: Stephen Joyce, the administrator of the James Joyce Estate, destroyed letters rather than see them come to light. 

Berthault notes that it was customary in France--and in this country as well--to return letters after the end of a relationship. Today, he points out, customs have changed and were letters still written as before, they would be more likely to turn up on a web site or in a "tell-all" blog. Because of that custom, the letters of Mme. S survived. 

While Berthault may have purchased the physical letters written by Mme.S, what about the publication rights? The translation rights? Presumably Gallimard, the French publishing house, has examined their rights to publish. 

But maybe not. 

Disney's Gator Problem--and Florida's


We kept an alligator in a pie tin under the stairs and fed it bits of raw hamburger. Its long black tail looked like the snakes that had once invaded our backyard. We made sure that the alligator under the stairs had water to drink; we checked on it regularly.

It died anyway.

But not all of them died. Alligators were later placed under protection in Florida and it was no longer possible to ship baby alligators north as short term curiosities.

In Florida, one of these reptilian pets survived against all odds. He named her "Gwendolyn." As the creature grew, its owner kept it in his swimming pool in Coconut Grove. When the weather got too cold for Gwendolyn, the owner moved her inside to the bathtub. In due course, the alligator grew to be over seven feet long.

Eventually, the Florida Fish and Wildlife Commission learned of the endangered pet and brought an enforcement action in Miami-Dade County Court. In Florida, as in the rest of the United States, problems are resolved before the courts since we are a quarrelsome people.

The matter came to be heard before the Honorable Lori Feiler, then a newly elected judge of that august tribunal. The alligator's owner claimed that he had raised the creature from pie tin to adulthood and claimed that it was thoroughly domesticated.

Attorneys for the Fish and Wildlife Commission retorted by pointing out that a gator is a gator, name or no name. Judge Feiler decided to convene court at the scene of the crime, as it were, so she could see for herself. After all, it is unlikely an alligator could make it past courthouse security.

In the end, the home visit was successful and the beast was allowed to stay in the only home it had ever known. It may still be there today; though on at least one occasion Gwendolyn had escaped before being returned and brought home. 

Florida alligators remained under protection and have thrived, but now they are a threat and a nuisance. It is unlikely that hatchlings will ever be shipped north as a control measure.

A consequence of their success was the death of a young boy at Disney World. Longtime Florida residents know that alligators may inhabit any body of water--even backyard swimming pools. In Florida, pets often go missing for this reason.

If you ever have the chance, visit the zoo maintained by the Miccosukee tribe. There you will see enormous alligators like the one in the photograph. These are true monsters. Disney will have a tough time making its lakes safe.

In Louisiana alligators were never endangered. But there they didn't appear in pie tins; instead you could find them on plates in places like Galatoire's and Antoine's. 

Here's a link to a story about Judge Feiler's case: http://articles.sun-sentinel.com/1994-10-27/news/9410260672_1_gator-gwendolyn-pet-s-owners