Major lawsuit threatens over NFT launch of August Sander photos

Julian Sander called The August Sander 10K Collection a “groundbreaking step” in a “brave new world”. Now, he says, “it’s turned into a shit show.”

The collection had to be historical. It would be the first time that the archive of an important figure in the history of photography would be made available as NFTs (non-replaceable tokens), allowing a historically significant collection of photos to be shared ownership on the blockchain.

But an established cultural foundation in Germany has seriously slammed the project, filing a massive copyright claim on the August Sander archive. The ensuing lawsuit could set a new precedent — one that could have widespread ramifications for the many photographers struggling to enter the emerging NFT market.

Julian Sander, the photographer’s great-grandson © Julian Sander

The plan seemed simple. Julian Sander, August’s great-grandson, is said to make the legendary German photographer’s entire archive — all 10,700 photos — available as NFTs on the blockchain marketplace OpenSea. They would be, wrote Julian Sander, “given away for free as NFTs”.

Potential buyers only need to pay a handling fee, also known as coinage fees, to own a digital version of one of photography’s most respected artists.

By doing so, the photographer’s great-grandson would “secure August Sander’s legacy on the blockchain”.

The project went online on February 10. It was administered by the August Sander estate, which is run by Julian Sander, a Cologne-based art dealer and gallery owner who, together with the Swiss gallery Hauser & Wirth, represents the August Sander estate. The project was launched in partnership with the Fellowship Trust, an NFT photography initiative co-founded by Mexican photographer Alejandro Cartagena, a 2021 Deutsche Börse Prize nominee and a champion of NFT photography.

A society documented

The project was launched alongside lucid evocations of August Sander’s historical contribution to photography. Born in 1876 in the German countryside, Sander was the son of a carpenter who discovered photography while working in a mine as a teenager. He learned to use a camera from his uncle and initially took up commercial photography before being immersed in the radical artist group the Cologne Progressives.

Sander, who remained in or near Cologne until his death in 1964, created thousands of crucial documents of German society under the Weimar Republic and during the rise of Nazism, a project he called People of the twentieth century

Sander lost a son, Erich, a member of the Socialist Workers’ Party, to the Nazi regime in World War II. August’s remains are buried next to Erich’s in the Melaten Cemetery in Cologne. August Sander’s son, grandson and now great-grandson have each worked on the photographer’s archive, firmly establishing him as one of the most influential European artists of the past century.

Many photography enthusiasts dream of owning an original Sander print, and trading the 10K collection was brisk initially. More than 400 Ether (ETH, currently equivalent to about $1.1 million) traded in a few weeks. Photographers of the caliber Gregory Halpern, a Magnum nominee, told his many followers that he bought a Sander NFT from the 10k Collection. “I keep hearing that photography will never be the same,” Halpern said. “Now it’s really not going to be.”

August Sanders Raoul Hausmann as dancer (1929) August Sander Archive

Many photographers proudly displayed their new Sander purchase on their social media feeds alongside the NFT greeting “GM” (“good morning”, a reference to the beginning of a new era).

And then, without warning, the collection disappeared. The archive, it turned out, had been deleted from OpenSea. The reason: Julian Sander does not own the copyright to August Sander’s oeuvre, it is alleged. Thus, the 10k Collection, if the claim is true, is in violation of copyright law and all of Sander NFT’s transactions to date may be in violation of the law.

The copyright claim came from SK Stiftung Kultur, a non-profit cultural foundation in Cologne. In 1992 Julian’s father and August’s grandson Gerd Sander, also a Cologne gallery owner, sold August Sander’s archive to SK Stiftung Kultur, with whom he had worked closely throughout his career. SK Stiftung Kultur holds the copyright to the archive until April 20, 2034.

As of 1992, the distribution and preservation of 10,700 original negatives and approximately 3,500 vintage prints was therefore the responsibility of the foundation and not of Sander’s family.

After the 10k Collection went live, SK Stiftung Kultur approached OpenSea with a takedown request. OpenSea complied on March 7 by suspending sales.

SK Stiftung Kultur did not respond to a request for comment. But a succinct statement on its website reads: “The foundation owns exclusively…unlimitedly in terms of location, content and time” all of Sander’s work, thus is “the only legitimate representation of August Sander’s legacy”.

On March 18, 11 days after the project was scrapped on OpenSea, the Fellowship Trust and Julian Sander responded with a statement. In it, they acknowledged that “a third party … claims to have certain rights to August Sander’s photos”.

“But I believe that the complaint is unfounded,” says Julian Sander.

Speak with the art newspaperSander expresses his anger at the disruption the takedown notice has caused, describing it as, “A ridiculous waste of time and money for everyone.” He adds: “The people who are continuing this struggle should be ashamed of themselves.”

Sander has actively positioned the 10K Collection as a unique innovation from Sander’s archive. Introducing the project, he wrote, “We are building a platform to help this collection become a case study of how photographic legacies can not only be preserved, but enhanced through community, decentralization and the blockchain.”

Detail of resale

What was not clearly stated was the royalty arrangement. Initially, buying an August Sander NFT was almost free; a merchant would only have to pay the initial coin fee to own one. But for all resale transactions, a 10% royalty discount would be taken through a smart contract, with Julian Sander receiving 7.5% of all resale and Cartagena’s Fellowship Trust the remaining 2.5%.

The disguised commercialism of the project has been hotly debated, with prominent photographers questioning its rationale.

No, I’m not trying to get rich… I’m rich. I don’t need this

Julian Sander, gallery owner

Sander tells the art newspaper: “People jump to the point. They all say, ‘Oh my god, he’s just trying to get rich.’ No, I’m not trying to get rich… I’m rich. I don’t need this.”

Nevertheless, Sander argues that the commercialization of the project guarantees its legitimacy in copyright. As a non-profit organization, the SK Foundation is not responsible for the sale of works in the global art market, which in his view allows Sander to publish the images in commercial settings, including in this case an NFT marketplace.

This means that Sander was able to create the 10K collection on OpenSea without involving SK Stiftung Kultur due to “fair use”, a technical term used in copyright law under the Digital Millennium Copyright Act.

“OpenSea is a marketplace,” he says. “That’s essential to this disagreement.” Trying to sell photos in this new market, Sander says, is just as valid as trying to sell photos at a physical art fair or in a private gallery on Cologne’s high street. Each is a marketplace that is just as valid as the other. As a gallery owner I work within the domain of fair use’, he says. “As a businessman who sells photos, I can legally sell photos and make money from it, through fair use. There is a clear framework.”

He adds, “One of the things that SK and their lawyers misunderstand is that they look at OpenSea as if it were Google Images,” he says. “OpenSea is a marketplace; everything is for sale. That’s why I was able to do this project. Because putting something on OpenSea means it’s for sale. And if it’s salable, I can show it. That’s why I didn’t even think about asking SK for approval.”

Sander also says he planned to split some of the royalties accrued from resale with SK Stiftung Kultur.

“Of that 7.5%, I always intended to give some of it to SK,” he says.

The rest of the proceeds would be used to “pay myself back for the hundreds of thousands of dollars I put into building all the data structures,” he says. “None of this exists for free. I don’t believe in the argument that culture should be free.”

SK Stiftung Kultur and Sander are now engaged in a legal battle, the outcome of which will determine not only the future of this project, but also the way copyright, as it is understood today, translates into the Wild West of blockchain technology. .

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