Some of New Zealand's leading photographers have challenged the legal rights of an Auckland art gallery to sell their historic photos of the 1981 Springbok tour.

The 54 photos were expected to sell for prices of up to $5000 at the Bowerbank Ninow Gallery in Karangahape Rd last night.

But Ans Westra, the 82-year-old Wellington photographer whose haunting images were expected to fetch the top prices, said the gallery had no rights to her 17 photos that were included in the catalogue.

Blenheim photographer Anthony Phelps, 57, has threatened legal action unless the gallery withdrew his two photos from the auction.

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Both photographers said they gave copies of their photos to former Real Pictures gallery owner Ian Macdonald for an exhibition immediately after the tour 38 years ago, but they said they were not paid and provided the photos only for the one-off exhibition.

"It was totally our contribution to the exhibition," Westra said.

"They were exhibited and ultimately they apparently ended up in a box somewhere outside because the building was demolished. Ian Macdonald had them deposited with him in his studio at Matakana.

"He made the mistake of not actually coming back to us saying can we now sell these prints?"

Westra said she protested to Bowerbank Ninow.

"They were pleading that they wanted to keep mine there or the whole auction would hardly be worth doing," she said.

"So we have come to a compromise that we hold out seven and the others can be auctioned, but all the money is frozen until we come to some kind of agreement between us about what's happening to it."

Phelps and Photosport director Andrew Cornaga, acting for Phelps, emailed Bowerbank Ninow yesterday saying the gallery had "absolutely no legal rights" to sell his two photos.

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He said gallery director Simon Bowerbank replied just after 6pm, minutes before the auction started, saying he was "unfortunately not able to remove the prints from our auction as it is too short notice".

"These prints are being sold on behalf of someone who has owned them for 40 years, whose business actually produced them in 1981," Bowerbank said in the email.

Anthony Phelps is threatening legal action against Bowerbank Ninow over two of his Springbok tour photos. Photo / Supplied
Anthony Phelps is threatening legal action against Bowerbank Ninow over two of his Springbok tour photos. Photo / Supplied

"With the remaining time we have it would take a prohibitively long amount of time to contact all of the bidders. However, I would be happy to delay paying out proceeds from the sales to the vendor and deal with the matter after the auction."

Bowerbank told the Herald the gallery takes the provenance of the artworks that it sells very seriously.

"When we consigned these works, we were given assurances by their vendor that they had the clear title to these works and were in a position to sell them.

"However, it has been brought to our attention that there is a difference of opinion regarding the ownership of some of the works in question," he said.

"In our line of business, this kind of issue comes up from time to time, especially when collections are very old and the exact nature of the work's acquisition is difficult or impossible to determine conclusively.

"In the event that such an ownership dispute does arise, we work with both parties to resolve the issue and find a solution in our capacity as an auction house."

Bowerbank said the gallery was aware that there is a dispute between the vendor of the Westra material and her representative.

"Bearing in mind that this is primarily a dispute between the vendor and Ans Westra, we have tried to mediate this situation as best we can. We were unable to determine the ownership status of some of the work, and to err on the side of caution we chose to withdraw seven lots from the sale.

"After consulting with both parties, the solution we arrived at was to hold the funds from the sale of the remaining works in a trust until their exact ownership status can be determined.

"Both Ans Westra, by way of her representative, and the vendor of the material have stated to us that they are happy with this solution."

Bowerbank said they were contacted very shortly before the auction by Andrew Cornaga, who he believes represents Phelps.

"He raised concerns about us not having copyright clearance to reproduce the works.

"Given that his concerns were about the copyright of the work, we offered to remove any reproductions of them from our website.

"We were not aware that there was also a dispute about the ownership of this material and, now that we have been informed of this, we will endeavour to find a solution that satisfies all parties involved."

Macdonald said Westra's dealer had written to him outlining a claim that he refuted.

He said he was "really bitterly disappointed" by the news and felt that from his point of view, she had breached a trust they had held with all photographers.

"Nobody was paid anything. The situation is more complex than that," he said.

"There is no question of anybody other than myself being the proprietor of Real Pictures, having ownership, no question whatsoever."

The copyright was not in dispute, that belonged to Westra, he said.

At the time there had not been a discussion about the duration of image use, but they were given to Real Pictures who paid for and made the prints after inviting photographers across the country to contribute, he said.

"There was no written agreement, there was an understanding this was a community effort and the photographers were part of a larger process of documenting the whole tour event."

There was a number of uses, it was ongoing, and people were aware of it, he said.

Some of those prints were now lodged with the Auckland Public library, he said.

Another set of prints, made by students volunteers, were sold to the Alexander Turnbull library, he said.

The journey in which the abandoned box had come back into his possession had been outlined to Westra in detail, he said.

Macdonald said for the same reasons he would refute any ownership claims made by Phelps but he did not have knowledge of his claims.