Letter to the editor

Afterimage, March-April, 2004 by A.D. Coleman

5. Carver claims that "Collectors[sic] and dealers' fears would subside if they knew that they were purchasing 'original' images." But she proffers absolutely no evidence that collectors and dealers in general have such fears, or, for that matter, any proof that the two major recent instances cited above caused even a ripple in the market. I just attended the 2004 AIPAD Photography Show in New York City, where the dealers I spoke to reported doing excellent business. What fears? Furthermore, as there is absolutely no evidence provided of any widespread traffic in forged photographs or any notable increase in such nefarious dealings, Carver's subsequent claim that "with greater protections afforded to fine art photographers under VARA, forgery of fine art photography should decrease" clearly has no sound premise, since she has shown no statistically significant increase in the first place. Indeed, Carver establishes no substantial traffic in fake photographs whatsoever, so by what measure are we to gauge any increases or decreases therein? Moreover, how would strengthening VARA have prevented the Hine scandal--the one instance cited by her--or the Man Ray case? On this matter, as on others involving the actual application of a strengthened VARA to the market in photographs, she remains mute.

From the evidence, one must conclude that neither Carver nor Prof. William L. Reynolds, the University of Maryland Law School faculty member whose review of this paper she credits, know anything at all about photography. Nor, apparently, do either of them believe that she had any need to consult the now extensive literature in the field or the many recognized experts--private dealers, gallerists, curators, conservators, archivists, historians, appraisers, etc.--who daily address and convincingly resolve issues of identification, provenance, dating, authentication, attribution, etc. Indeed, of this paper's 189 footnotes, only a few cite writings on photography, and those all indicate a total of only two sources: Richard B. Woodward's essay on the Hine brouhaha for The Atlantic Monthly, and Susan Sontag's book On Photography. Hardly definitive reference works on these particular matters.

With that said, let me add that these major (indeed, fatal) flaws occur entirely in the middle section of the paper, titled "VARA Applied to Photographic Works of Art." The paper's first half--with its overview and background history of droit moral and VARA, its comparison of the two, its analysis of the strengths and weaknesses of each, its diagnosis of VARA's flaws and limitations--and its final recommendations and conclusion are solidly reasoned, well-supported, cogent, and valuable. (They do not, in fact, depend much if at all on the section I've challenged.)

I would strongly urge Carver to revise this paper to raise it up to professional standards of scholarship. It's potentially a useful tool in the struggle to bring photographers and their works fully under the protection of VARA, and to expand the scope of VARA to conform it more closely to the far superior droit moral legislation that prevails elsewhere (and to which VARA was a response, even if a comparatively feeble one). If Carver wants to do that, this author--along with many others in field, I'm sure--will gladly assist her in correcting, refining, and nuancing her arguments in regard to photography, and in identifying the references with which she should familiarize herself to substantiate her claims.