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Harvard Sues Elmore, Gets Injunction Stopping Sales of

29 March 2016

From the Maine Antique Digest:

A lawsuit filed in federal court in New Mexico in June 2015 pits Harvard University, which has about a $37 billion endowment, against Steve Elmore, an antiques dealer who patched together $36,000 to self-publish a book. The suit may hinge on the definition of the word “manuscript.”

. . . .

In 2015 Elmore of Santa Fe, New Mexico, self-published a 217-page book, In Search of Nampeyo: The Early Years, 1875-1892. It was the culmination of decades of work and research. His publication was also the result of Elmore’s being rejected by the Peabody Museum Press, the publishing arm of the Peabody Museum of Archaeology and Ethnology at Harvard University.

In its suit, Harvard claims Elmore used photos he took in the Peabody Museum after signing an agreement that specified how he would use the photos and restricted their use. Elmore counters that Harvard released all its rights to the manuscript and wants to publish his decades of research without crediting him.

According to court documents, in August 2010 Elmore signed a contract with the Peabody Museum Press to write a manuscript on Nampeyo. The contract noted that the manuscript was subject to peer review and promised “potential publication,” and Elmore was paid $1500 to conduct research at the museum.

. . . .

“The first version of my manuscript was sent out for peer review, with two out of three reviewers recommending publication with revisions. The editor asked me to revise the book for the more scholarly ‘Peabody Museum Papers’ series. She asked me to explain my methodology and to link my work to art history, which I did. The new version of my manuscript, complete with my photos, took me another year and added 100 pages to my manuscript. In November 2013 I submitted this final version…and it was rejected with little comment in January 2014 by the Peabody Museum Press board of directors,” said Elmore.

The rejection letter’s language is the subject of dispute.

In a letter dated January 21, 2014, Joan Kathryn O’Donnell, director of the Peabody Museum Press, rejected Elmore’s manuscript because it was not a fit with the Peabody’s “editorial and publishing priorities and standards.” Elmore’s approach to the material, the letter said, was “inappropriate” for the Peabody’s scholarly publication series, and it quoted a board member who leveled a stark criticism. “We are an academic press, and this is not an academic book,” the unnamed board member said.

The rejection letter stated that the Peabody Museum Press was returning to Elmore “all rights in the manuscript…including all versions of the manuscript submitted to the Peabody Museum Press.” O’Donnell encouraged Elmore to publish elsewhere, even offering ten to 15 high-quality photographs and suggesting American Indian Art Magazine as a possible venue. “We tried very hard to make this project work,” O’Donnell lamented.

Elmore took O’Donnell’s advice but didn’t go the magazine route, and he didn’t accept the Peabody’s offer of photographs; he self-published the book through Spirit Bird Press, an entity he created.

. . . .

On December 10, 2015, a federal judge granted Harvard’s motion for an injunction, stopping Elmore from advertising, selling, and distributing his book. Elmore had already sold over 900 copies of the book that cost him $36,000 to produce, had a deal with Amazon.com in place, and had media kits ready to promote his book.Maine Antique Digest reviewed the book in the April 2015 issue.

Elmore is fighting back on two fronts: he’s filed a countersuit in federal court and launched legal action in a state court in New Mexico. His countersuit alleges breach of contract, breach of covenant of good faith and fair dealing, tortious interference with contractual relations, conversion, and more.

. . . .

In an e-mail to M.A.D., Elmore states his case. “Here’s my take on the Permission to Photo agreement. First, that agreement is Harvard’s attempt to strip photographers of their copyright of their work. The intention of the agreement is for Harvard to avoid U.S. Federal Copyright law and for Harvard to assert itself between the photographer and his own copyright, thus placing itself above the law. Right now, Harvard acknowledges I own the copyright to my photos, returned in the ‘all rights’ letter, yet insists I can’t publish them. What else does copyright mean? I’m not denying I signed the agreement, and I would not have published without their returning to me in writing from the Board ‘all rights’ etc. and ‘recommending’ I publish elsewhere.

. . . .

Harvard’s lawyers claim the injunction is necessary. “It is extremely important to the Museum to have control over and approval of any published photographs of its collections, because the quality of those photographs and the way they are presented reflect directly on the Museum, and either enhance or degrade its reputation.” Harvard claims that Elmore’s photographs are blurry, washed out, or inadequately lighted.

Link to the rest at Maine Antique Digest

Contracts, Copyright/Intellectual Property, Legal Stuff

17 Comments to “Harvard Sues Elmore, Gets Injunction Stopping Sales of”

  1. The original article states no further information about the ‘deal with Amazon.com in place.’

    It makes it sound important. That nuance again.

    I have one of those deals with Amazon – they’ve published/distributed my work, and send me royalties when copies sell.

    It was not clear if Mr. Elmore had something other than that standard agreement. It says he self-published, and formed a company to do that. I did that, too – created an imprint I hope to use a lot in the future, mainly for myself, but who know what might happen in the future. There are many of us in that boat. I was not aware that Amazon considered such one-writer imprints as anything special.

    I am also careful to get permission (in writing) to use anything that is not mine, and to attribute those properly.

  2. I’m a photographer. It is extremely common to have the copyright to an image and not have the rights to publish. When you have a headshot taken for your author photo, the photographer holds the copyright and grants you permission to use it in your promotional materials. You can’t sell it on to an ad agency to be used to sell shampoo as you don’t have the copyright. Neither can the photographer sell it to an ad agency to advertise toupees as he doesn’t have your permission for that use.

    A museum would have similar authority over images of its collection.

  3. It all comes down to the details of what’s in the contract.

    But in general, if I go into the museum and take a picture of the Mona Lisa, I own it, not the Louvre. So long as the artwork is in the public domain, I can exploit it any way I please.

    That Harvard’s objecting because the alleged poor quality of the photos would damage its reputation sounds like a stretch.

    • One could argue that the author infringed the copyright on the 1981 photographs by reproducing the disposition of the objects, and the camera’s settings…

    • No, you cannot. You cannot go to the Louvre, take a photo of the Mona Lisa, then use that photo to sell shampoo.

      A lot of photographers I know use a rule of thumb I call the gift shop test. If the gift shop of the museum, zoo, or similar has images of an exhibit item or animal on sale (postcards, mugs, fridge magnets, plush toys) then they are going to be very touchy about you using your own images of the same item in any commercial manner.

  4. Seems to me the article has it right: it boils down to what “all rights” means in court.

    Mr Elmore obviously thinks it means they gave up all claims to everything in the manuscript while the Museum seems to think they only gave up the right to publish the package as a whole, not to the individual components.

    I suspect Mr Elmore might just prevail.
    Overly broad language has burned many.

    • I think it boils down to what “manuscript” means. Does manuscript include images, or only text? It sounds like the museum believes the latter, while Elmore believes the former (citing that the images are “integral” to the manuscript).

      Also, from the article

      On Christmas Eve 2010 Elmore signed an agreement provided to him by the Peabody Museum. In the document titled “Permission to Photograph Collections,” he agreed to several terms: the photos were to be used solely by him for his own personal research and could not be reproduced except for limited, mostly scholarly, uses. A clause in the agreement states that if Elmore breached the provisions of the letter, he agreed to pay Harvard the sum of $10,000 as liquidated damages.

      Elmore claims he signed the document in haste.

      He could have signed it upside down for all the “how” of his signature matters. He signed the document. That agreement seems pretty clear as to the province/ownership of the rights to the photos.

      • Ah. In that case, Mr. Elmore could have benefitted from the Business Rusch blogs. I wish more writers understood that contracts are real, not items of whimsy.

  5. I hope Mr. Elmore prevails. I was wondering about what museums, any museum can really claim with finality:

    Museums have often ‘harvested’ artifacts from ancient sites in foreign countries, bringing home bones and jewels and more that do not and never will belong to them. Or have been the glad receivers of same. They ‘found’ them, they say. They were ‘given’ them, they say.

    I wonder if much of what lies in museums, often on display, often in storerooms unsorted, means museums stand in the forefront of being upsirpers of things belonging to others; grave robbers.

    If seems much of what comes to museums and I wonder if it is true, comes from some fellow[s] who paid off the governing junta of the time, to dig up and carry away the bones and artifacts, clothing and valuables belonging to the ancestors of the people now living there.

    I wonder if any museums have dug up the bones of say, vietnam veterans, or people from the local sanatorium or stillborn baby graveyards, and put them on display. This ONLY to say: Not sure what provenance really is when a collector leaves a collection to a museum of anything, including photographs, but in all, things/ artifacts they came by not above board. Or above board, … what happened to what the harvards of the world fought so hard for in IP law:
    ‘fair use.’ I wonder how large the photo collection was in toto, and what % Mr. Elmore utilized.

    As Felix notes, the meaning of the word ‘all’ seems like it ought win the day. All does not mean, something held back, right? It means the whole magilla, no?

    Regarding taking pix of Mona Lisa… there are zillions of pix of the actual tiny painting all over the internet. But try to put an image of the original on a book cover and likely get a call from legal at the museum. Why? The painting is far far out of copyright. Something about museums squatting on ‘licensing’ rights. There”s a whole industry out there that sells ‘right’ to pop or well known painterly image for one time book cover.

    • Museums have often ‘harvested’ artifacts from ancient sites in foreign countries, bringing home bones and jewels and more that do not and never will belong to them.

      Eh, I wish someone had raided Ninevah and Palmyra et al and put that stuff in a museum before ISIS got to them. If some groups don’t value their history, museums sure will.

      Grave robbing is an ancient profession — it seems every other chapter I’d read on the pyramids mentioned that this or that tomb was looted centuries ago by grave robbers. I’d rather give the looters an incentive to bring in archeologists instead of hawking the goods on the street.

      I used to despise grave robbers, now I’m wishing Lara Croft** / Indiana Jones were real so history won’t keep getting destroyed. At least Indiana’s mantra was “It belongs in a museum!” Better a museum than rubble 🙁

      I did not know that museums were squatting on licensing rights, though. That could not be more counterproductive to their core mission. I had no idea they could say “No Mona Lisa book cover for you!” I always thought the photography prohibition was to protect the art.

      I went and checked on whether the art is public domain. It looks like in the US you can get away with using photos of art, because Bridgeman Art Library vs. Corel Corp says the photos can’t be copyrighted. Japan and Poland agree. Italy says the photos can be copyrighted for 20 years, Spain for 25. France, Australia, and a lot of places are considered “inconclusive” on their stances.

      So if Elmore does win, it looks like the photos he took will be considered public domain in America. That’s probably the other reason Harvard is fighting him.

      **When the game “Tomb Raider” first came out I thought the raider must be an evil villain because of all those Egyptology books that mentioned grave robbers. Then my brother rented the game and I figured out she was supposed to be Indiana Jones.

      • Id have to see the contract to actually make some sort of half prediction of outcome for Elmore… And would have to see the rights claims on the photo collection from Harvard, which is essentially begun as a religious institution, and seems to give enormous number of scholarships per year to many, and yes has billions of $$$$$ of endowment, at least a third of which it literally lost to Bernie Madoff “investments”.

        I was just looking at Lib of Congress which has restrictions on ‘some’ uses for its photo archives–one is to write for ‘more info’ and those photos, supposedly belong to the people. But apparently not across the board. Im not a lawyer, only had a brush with law school, but would rather check out use directly with holder, not on internet. But direct communication.

        One of my book covers has a partial image from a Picasso painting and we were required to gain permission and to pay a fee, which was paid by the publisher. I wouldnt risk using an image of a painting/sculpture owned by a museum for a cover, in the USA or elsewhere, without written permission and all else that might go along with it. Last thing needed is to have to defend oneself re supposed infringement.

        Re Palmyra etc, Im with you on watching the destruction of arches, it’s sickening –but far more so the murders of the people, most of whom are Muslims, but many also Christians, and other religious groups. Yet, I trust this: many of the frescos and bas reliefs are now in black market ‘collectors” hands. ISL is not stupid; destruction of sites after first pillaging them is one way they raise money for their deadly invasions and preplanned murderous slaughters. An entire sload of money.

        Many of the black market “collectors” in USA, Europe, Middle East, the Americas, since forever, are the end destination for centuries of grave robbers pillaging, murdering, raising money for nefarious means. IMO, It is a shameful transport, supported by greedy collectors. They create the market. They fund shameful things as byproduct of their giving money to those who have completely other agendas.

        The day of regard for the dead, in many parts of theworld seems long gone. Taking, no matter who it is, of those buried in sacred ceremony is dead wrong imho. Try that at the DC military cemetery or the graves at Gettysberg. It wouldnt be just the police who show up. It appears that ‘other people’s dead’ are fair game, not one’s own. Just my .02, I cant support it. I’d rather support that people ‘s lives are spared, and not enslaved nor brutally maimed, if its keeping a building and its artifacts together, vs human lives together. Buildings and artifacts can be reconstructed as many across the ancient world have been in modern times. But the dead, cannot be brought back to life.

        Again, just my .02: I hope Elmore prevails, only because it is HIS hard work, his research, and it also sounded like [but not sure, would have to read all the papers carefully] Harvard wanted to get a leg up on him and publish same or similar work built on his bones of his research. If so, it appears something like same mentality; let’s take what belongs to others, because there’s an end user who will pay for this stuff.Z

        Harvard: “Mine mine, all mine” because ‘others do the same,”… I dont think that holds water. But legally, is a whole other issue.

        • WRT to the dead — because I’ve had a passing interest in archeology for so long, I used to assume that in succeeding centuries our own graves will be dug up.

          The only reason I think that’s less likely to happen now is because: 1) We don’t tend to have grave goods worth stealing, so no grave robbers, and 2) All of our history is written down, and medical knowledge is widely disseminated, so there’s little point of digging su up in the name of history or science (if that legend is true about da Vinci and Michaelangelo).

          So there’s hope that people will reverence “rest in peace” in a way that it seems they never did before.

          WRT to the living — those who can help the victims of ISIS have either left them twisting in the wind, or have gone to great trouble to muck up everything. It seems all that the rest of us can do is pray for them.

          • I will add, part of why I wish those treasures were saved — and I hope you’re right that they were — is that in the future, if ISIS is defeated and those countries became more stable, Ninevah and Palmyra et al could be tourist draws, the same way the coliseum and the Parthenon and pyramids are tourist attractions.

            The late Ambassador Stevens wanted the Greco-Roman ruins in Libya to do just that. For some of these places, like Libya, tourism could have been a rung on the ladder to other things. If they become peaceful again, that particular rung is denied them. It is probably overly optimistic on my part to even hope they could have that chance, though.

            • Id only add to your astute observations Jamie, that in the usa, and the americas, prob only 1% of history is written down. Taking just Guatemala or Chiapas, there are millions of persons who ‘have no history’ written about them and their incredible lives for they are beyond poor. And their burial grounds are filled with their dead in ceremonial clothing, artworks and etc, so ironically

  6. I do know how to spell usurpers. I really do. Not much else, but that one I do know. lol

  7. Dear Clayton:

    Thank you for your informative article “Harvard Sues Elmore, Gets Injunction Stopping Sales of Book” (April, 2016) on Harvard’s disgraceful lawsuit against my book “In Search of Nampeyo: The Early Years, 1875-1892”. Presently, Harvard is refusing to turn over important discovery documents necessary to my defense against their outrageous attack on my book. Due in November, 2015, these discovery documents will reveal the detailed truth about the Peabody Museum editor’s double conspiracy to both censor my 25 years of research on Nampeyo, at the insistence of an unethical museum professional with conflicts of interest, and to assist another Harvard scholar in using my research without crediting me. Harvard’s trumped up lawsuit reveals its intentions to both censor my book and separate me from my 25 years of research, including denying me the copyright of my original photos to which they returned “all rights” to me in writing.

    In addition, just as Harvard is appropriating and censoring my life’s work, it is also appropriating the designs of Nampeyo and other ancestral Hopi artists by claiming copyright on them through simple black and white photographs they published in Historic Hopi Ceramics. I did not publish a single one of their fuzzy black and white photos in “In Search of Nampeyo”, yet Harvard claims copyright to my handmade color illustrations. This must not be permitted. I urge all of you to sign the petition “Free Nampeyo” on Change.org to Drew Faust, President of Harvard as well as the Fellows of Harvard to cease their disgraceful lawsuit against “In Search of Nampeyo: The Early Years, 1875-1892″. Further, Harvard University should also cease its outrageous attempt to claim unfair copyright on Native American designs.

    My constitutional rights to freedom of speech and freedom of the press are at stake, as well as those of future scholars. Harvard is attempting to deprive Native Americans of rights to use their own designs for its own profit.

    Thank you for your support and participation.

    Thanks again for keeping the American Dream alive!

    Sincerely,

    Steve Elmore

  8. I am Steve’s partner and was involved in the research, writing, and now the lawsuit. I want to add some facts that may help sort this out. We have documents to back up everything that I am writing here. The photography agreement Steve signed said his own photos could not be published without written permission. It did not say anything about the exact form of that permission. The letter from the board returned to him “all rights” in his MS and recommended he publish elsewhere (the elsewhere that they recommend included a magazine but also “other trade publisher”) The definition of MS in the book contract he signed said that MS included text, copies of illustrations, bibliography, etc. So that seems to include his photos. In fact, the book is essentially a photographic argument of Steve’s thesis. The editor stated in court that his book would be useless without the photos. So, Steve read the letter as giving him permission to publish his manuscript with the photos. Otherwise, Harvard’s letter would duplicitously being giving him overt permission while at the same time having the real meaning that he could never publish his work. There is one other wrinkle in this permission thing. There is yet another document and policy, the “photo submission form” that is supposed to be submitted if you want to use your own photos in a publication. Steve was never given this form. Perhaps he should have known about it. However, we have (in the discovery documents they did give us, they are withholding a huge number of documents) a series of emails from before Steve published his book in which staff realize no one has given this document to Steve, and they start drafting various versions of a letter to him that highlight their photo permission policy and direct him to the form online. All versions of the draft contain this information. However, the editor removed all reference to the form and the policy when she sent the letter to Steve, so Steve still believed himself to have been given permission. The information was deliberately withheld. We also have evidence of Steve’s work being given to one of their own people, one who specifically stated that she did not believe Steve’s thesis before he wrote the book, and now is suddenly writing a book on his thesis and clearly has detailed knowledge of his MS. I think this is bad. To top it off, Harvard is now claiming it has the copyright to the Hopi designs on the pottery in this collection (all created by Hopi artists prior to 1892) because it took photos of the pots. There is a petition on Change.org called Free Nampeyo

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