The Arkansas Museum of Fine Arts Foundation doesn't want to allow Fred Stewart to make high-resolution copies of 3,000 glass-plate negatives shot by his great-great uncle, the eccentric Heber Springs photographer Mike Disfarmer.
Stewart could make "marketable" copies of the images and use them "for monetary gain," according to a court filing last week from John E. Tull III, an attorney for the foundation.
Stewart is administrator of Disfarmer's estate, which a judge in Cleburne County Circuit Court reopened last year at Stewart's request -- 63 years after Disfarmer's death in 1959.
According to a June 1 filing from Stewart's attorneys, "The purpose of the viewing and copying of the negatives, as requested by the Estate, is not to confirm who has possession of the negatives but for the Special Administrator to collect copies of the undisputed copyright asset of the Estate, the photograph itself."
"The trouble is that title to the copyrights in Mr. Disfarmer's works is, in fact, disputed," Tull wrote in his response, adding that the probate court doesn't have jurisdiction to order the delivery of property to the administrator.
"If the Estate has any right at all to the copies it seeks, then presumably there is some legal mechanism to enforce it. A lawsuit comes to mind," wrote Tull. "Barring that, the Court should decline to short circuit due process by asking the Foundation to part with its property simply because the Estate thinks it is entitled to it."
According to Stewart, the museum has no claim to the copyright because it has no document showing that the copyright was passed from Disfarmer or his heirs to the museum, or anyone else.
In the June 1 filing, Stewart's attorneys cited 17 U.S.C. § 204: "A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent."
Negatives are one thing, images are another, according to Stewart's attorneys.
"Here, while the Foundation's right to possession of the photographic negatives is certainly debatable given the precarious set of facts giving rise to said possession, the Estate's right to the copyrighted images the negatives it contains is not," they wrote. "The bottom line is that the Estate is entitled to the images as the images are the Estate's property."
In a May 12, 2022, letter to the attorneys when she reopened the case, Circuit Judge Holly Meyer wrote, "The Petitioner asserts that estate assets (copyrights) have been recently discovered and the estate should be authorized to litigate its interest in same. This Court has studied the underlying claim but is not able to rule on the ultimate merits of a claim that is not yet even filed. The Museum's disputed assertion that the claim is without merit is not a cause to deny reopening the estate. This decision should be viewed as completely without prejudice either for or against a possible copyright claim."
In a May 24, 2022, order reopening the case, Meyer wrote: "The Court finds that Fred Stewart is a proper person and is fully qualified by law to serve as special administrator of the Estate for the purpose of determining whether undistributed Estate assets exist in the form of negatives and copyrights, asserting any such rights of the Estate as authorized by state and federal law, and distributing any such assets to the heirs of the Decedent. This Order does not adjudicate whether any particular copyright claims exist and is made without prejudice either for or against any such possible claims."
"Put into a corner, the Estate now has unveiled its purpose in not so many words, which is to obtain marketable copies of Mr. Disfarmer's work and to force the Foundation to defend its property rights when the Estate or its heirs use those copies for monetary gain," Tull wrote in last week's filing.
Disfarmer died at the age of 75 without a will, wife or children.
Disfarmer's family showed no interest in the negatives at the time of his death, so they were sold to Joe Allbright at an estate sale for $5, and that $5 was deposited in the estate's account at Arkansas National Bank in Heber Springs, according to filings from the foundation.
Disfarmer's estate went through probate court in 1961 with the $18,146.80 he had in the bank being divvied up -- after claims, taxes and fees were paid -- between his three surviving siblings and the children of his other three siblings.
That's equal to about $185,000 today, adjusted for inflation.
In the early 1970s, Peter Miller, then a newspaper editor, bought the Disfarmer negatives from Allbright. Again, the selling price was $5.
Miller worked to restore many of the negatives. Bacteria was eating away at the animal-gel emulsion.
He sent some Disfarmer photos to Julia Scully, the editor of Modern Photography magazine. She published them in the magazine in 1973 and arranged for a museum show in New York City.
Later, Scully and Miller worked together on the 1976 book "Disfarmer: The Heber Springs Portraits."
By that time, Disfarmer was somewhat of a posthumous sensation in the art photography world.
In 1977, Miller gave the approximately 3,000 negatives to the Arkansas Arts Center Foundation, which is now the Arkansas Museum of Fine Arts Foundation.
According to Tull, the foundation has spent hundreds of thousands of dollars restoring and preserving the negatives.
Now, Disfarmer prints sometimes sell for thousands of dollars.
In January 2021, Stewart filed a petition to reopen the estate and appoint him as special administrator, saying Disfarmer's heirs had recently learned that thousands of "very valuable" negatives weren't administrated during the original probate of his estate.
"Instead, it appears that the Negatives were wrongfully taken from the Decedent's residence by unrelated third parties who then used them for their own gain and benefit," according to the petition.
The foundation is seeking a protective order against discovery requests from Stewart.
"In the end, the Estate knows that the only discovery tool available to it is useless in the circumstances because the Foundation has already admitted to possessing the property the Estate wants to claim as its own ..." wrote Tull. "The Estate cannot use this proceeding to litigate a case that it refuses to file."
The judge hadn't ruled on the protective order as of late Friday.
Some of Disfarmer's photographs can be seen at https://www.icp.org/browse/archive/constituents/mike-disfarmer.