Home » Copyright/Intellectual Property » ‘Morally, Harvard Has No Grounds’: Inside the Explosive Lawsuit That Accuses the University of Profiting from Images of Slavery

‘Morally, Harvard Has No Grounds’: Inside the Explosive Lawsuit That Accuses the University of Profiting from Images of Slavery

29 March 2019

From ArtNet News:

A thorny lawsuit making its way through the courts pits Harvard University against a woman who claims she is the direct descendant of slaves depicted in several 19th-century daguerreotypes owned by the school’s Peabody Museum of Archaeology and Ethnology.

In a case filed on March 20 in a Massachusetts court, Tamara Lanier is asking for Harvard to hand over the daguerreotypes, which were first rediscovered in a box at the Peabody Museum in 1976, and to pay damages and “other legal and equitable redress” to be determined by a jury. According to the lawsuit, Harvard has been behind a “decades-long campaign to sanitize the history of the images and exploit them for prestige and profit.” No monetary amount or estimation of the school’s profit is cited.

The case has already sparked intense debate and raises complicated legal and ethical questions about the ownership of cultural property, particularly against the backdrop of the United States’s long and shameful history of slavery.

The pictures have a sordid history. They were made at the behest of Louis Agassiz, a Swiss researcher and one of Harvard’s leading scientists, as part of his quest to “prove” black people’s “inherent biological inferiority and thereby justify their subjugation, exploitation, and segregation,” according to Lanier’s suit.

The subjects of the 1850 daguerrotypes are a man known as Renty and his daughter, Delia, both of whom were enslaved in South Carolina. At Agassiz’s orders, Renty and Delia were “stripped naked and forced to pose… without consent, dignity, or compensation,” according to the lawsuit. Lanier says Harvard is squarely to blame for the situation, since it elevated Agassiz to the highest echelons of academia and steadfastly supported him as he sought to legitimize the myth of white superiority.

“Seeing those images over and over again out in the world is damaging,” says Jessie Morgan-Owens, a professor at Bard Early College in New Orleans. “These images inculcate racism—that’s what they are for.”

. . . .

The lawsuit is a legal and ethical minefield. Should Harvard hand over the daguerreotypes, as Lanier had been requesting for years prior to filing the suit? Do the pictures serve as a reminder of a heinous history and thus require institutional context? Or do they simply reify the abhorrent policies they were created to justify in the first place?

artnet News asked a bevy of lawyers and art historians to weigh in on this complicated case. There’s one thing they all agreed on: that this unprecedented lawsuit raises far more questions than it answers.

“Legally, what seems to me to be the most compelling issue is, which law will the courts apply?” asked art lawyer Sergio Muñoz Sarmiento. “Will they apply the laws of 1850, or will they apply current law?” 

Further complicating matters is the fact that typically, enslaved people were unable to legally own property or images of themselves unless their owners allowed it, says Brenda Stevenson, Nickoll Family Endowed Chair in History at UCLA.

“Even then, an enslaved person’s ‘property’ could be contested by one of their owner’s legal heirs, unless a slave’s right to own this property was very particularly protected by legal documentation that could hold up in court,” she says.

. . . .

“My initial reaction is that I’m sorry this case is in a court, which is an adversarial proceeding in which one party must win and one party must lose,” Stephen K. Urice, a professor of law at the University of Miami School of Law, told artnet News. “The ethical issues are profound and really need frank discussion. I would have been much happier to see if the plaintiffs and her attorneys could have opened Harvard to a broader dialogue, though it seems Harvard wasn’t open to that.”

But other institutions have already been making headway in involving the descendants of slaves in their missions. James Madison’s Montpelier, the plantation home of the fourth US president, has a volunteer archaeology program in which descendants can help recover artifacts, says Jennifer Van Horn, professor of art history and history at the University of Delaware. “I think that we can take a cue from plantation museums like James Madison’s Montpelier.”

Still, the question remains: what will Harvard do?

“Morally, Harvard has no grounds to withhold the return of these images to a family member,” Stevenson says. “France has decided to return art stolen from Africa during its colonial domination of parts of that continent. Other European countries have done so—to a limited extent—in the past. Why shouldn’t African Americans be able to claim images of their ancestors when these images were taken under force of punishment? These reparations need to be made.”

Link to the rest at ArtNet News

PG notes that the wrong done in this matter happened well over 150 years ago, in 1850 when the photos were commissioned, and the victims have been dead for at least 100 years. Renty and Delia cannot be compensated for the wrongs that were done to them. Any monetary compensation under the present claim will be paid to individuals who have never been slaves.

Would it be more equitable to utilize any monetary penalties imposed on Harvard to compensate those in Africa and the Middle East who are presently enslaved or have themselves been slaves? If we are demonstrating our disgust that slavery has ever existed, why not fight the slavery we can do something about?

PG notes another problem with this claim – If the photos themselves are terribly offensive and embody the great harm slavery did to Renty and Delia, should they simply be destroyed? If the plaintiff in this case and others have experienced material emotional damage from seeing these photographs, would not others similarly situated be spared such damage if the photos were simply destroyed so they can do no more harm. Are these photos to be regarded as equivalent to toxic waste, for which the solution is a clean-up?

If the photos should be preserved as a record to teach important lessons about the horrors of slavery to generations yet unborn, how can they best be preserved and displayed with appropriate explanations of the history of slavery to those unborn generations?

PG is no expert on the preservation of old photographs but does know photographs can be harmed by light, humidity, mold, improper temperatures and the surfaces upon which they lie during storage (photos should never be stored vertically). With no disrespect intended toward the plaintiff in this matter, PG suggests that Harvard, which has already successfully preserved these photos and other historic artifacts for a very long time and possesses an enormous endowment that will enable it to do so in the future, is much more likely to be able to protect the photos than any individual can.

While PG understands the plaintiff in this case relies upon stories passed down orally about a slave ancestor named Renty, he understands Renty was not an unusual name in the United States during this time period.

PG performed a quick search on Familysearch.org, a free online genealogical database, and discovered over one million records for individuals named Renty born in the United States between 1810 to 1850, a date range that would probably have included records for the Renty in the photos.

(PG cites the results of his research in the preceding paragraph only to show there were a large number of persons named Renty who would have been alive when the photos in question were made. PG notes that most slaves did not have their births recorded in government records in the Southern states, but after the Civil War, marriage and death records for former slaves would have been kept. Additionally, The Bureau of Refugees, Freedmen, and Abandoned Lands AKA the Freedmen’s Bureau was established in the War Department by an act of March 3, 1865. The Bureau supervised all relief and educational activities relating to refugees and freedmen who were formerly slaves, including issuing rations, clothing and medicine. The Bureau also assumed custody of confiscated lands or property in the former Confederate States, border states, District of Columbia, and Indian Territory. As a byproduct of its activities, The Freedmen’s Bureau created, collected and preserved extensive records identifying former slaves.)

In addition to the probability that the Plaintiff in the lawsuit is not descended from the Renty in the photos, but rather from one of the many other Renty’s from that period, there is also an additional problem.

Is the plaintiff in the lawsuit against Harvard the only living descendant of Renty and/or Delia?

The answer is almost certainly no.

Assuming that Renty and/or Delia and his/her descendants had children and their children had children, etc., there are likely hundreds of descendants other than the Plaintiff. Are the other descendants properly represented? If the Plaintiff receives any money from Harvard, will the other descendants receive their portion? Will Harvard face additional suits based on the photographs from other descendants of Renty and Delia?

One of the characteristics of civil suits by the heirs of a deceased person is that courts are very interested in locating all of the heirs. There are a variety of reasons for this, including those mentioned above. Additionally, if one heir wants to sue for an obligation allegedly owned to the decedent and the other five other heirs don’t because they believe there is no obligation or for some other reason, can the single heir take the suit forward in the face of such opposition? Is the single heir entitled to ask the court to award him/her the entire obligation or just 1/6th of the obligation?

Back to the living heirs of Renty and Delia.

According to a New York Times article in 2010, when Yitta Schwartz, a faithful Satmar Hasidic Jew who survived four years in the Bergen-Belsen concentration camp during World War II, died at the age of 93, the number of her descendants attending the funeral was impressive.

Mrs. Schwartz “left behind 15 children, more than 200 grandchildren and so many great- and great-great-grandchildren that, by her family’s count, she could claim perhaps 2,000 living descendants. . . . Her descendants range in age from a 75-year-old daughter named Shaindel to a great-great-granddaughter born Feb. 10 named Yitta in honor of Mrs. Schwartz and a great-great-grandson born Feb. 15 who was named Moshe at his circumcision on Monday. Their numbers include rabbis, teachers, merchants, plumbers and truck drivers.”

If Mrs. Schwartz, who was born in 1916, ended with 2,000 descendants in less than 100 years, one might conclude that Renty and Delia also have a great many heirs who are not involved in the lawsuit.

Another account of the lawsuit reported that the Plaintiff was seeking a judgment awarding her the copyright to the photos. A couple of points:

  1. When a photographer creates a photo of a model, the photographer owns the copyright, not the model. Absent some sort of written contract between the photographer and the model granting the model rights in the photograph, the model has no claim to ownership. If a news reporter takes a photo or makes a video of a group of 50 protesters on the street, the protesters are not the owners of any rights to the photos or video and the reporter can transfer rights to the images to a newspaper or other publisher free of any obligation to compensate, credit or otherwise deliver anything of value to the protesters.
  2. PG is not an expert on the provisions of US copyright laws in the mid-19th century, but, to the best of his knowledge, copyrights have always been of limited duration. Article I. Section 8, Clause 8, the “Patent and Copyright Clause of the Constitution” states: [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (Emphasis added). After the expiration of the term of copyright, the previously-protected material goes into the public domain free of any claims the creator might once have held on an exclusive basis. Any rights Renty and Delia may have once held to the photos (along with the rights of the photographer who made the photos) disappeared as a matter of law many, many years ago.

According to Wikipedia, “Lawfare is a form of war consisting of the use of the legal system against an enemy, such as by damaging or delegitimizing them, tying up their time or winning a public relations victory.”

PG is pretty certain, the claims being made to the photos of Renty and Delia by an heir, real or pretend, fall under the classification of racial lawfare.

 

Copyright/Intellectual Property

22 Comments to “‘Morally, Harvard Has No Grounds’: Inside the Explosive Lawsuit That Accuses the University of Profiting from Images of Slavery”

  1. Theoretically there might be a toehold under Right of Publicity law if the people in the image were still alive but after seven generations? Doubtful.

    Calling it Lawfare is about right.
    Were the subjects of the image different, one might be tempted to raise a parallel to a similar attempt to use the legal system for political purposes involving an accidental selfie by a non-human species. The court didn’t buy the narrative then and they’re not likely to buy it in this case either, especially since it isn’t being litigated in Chicago.

  2. What about relatives of the dead in Matthew Brady’s Civil War photos? Should I be able to sue everyone who profited from including the photo of the dead soldier from Gettysburg if I am the great-great-granddaughter of his or of one of his siblings? Or descendants of the baby in the famous photo from the Japanese bombing of the train station in Nanking/Nanjing?

    Lawfare indeed.

    • Ken Burns’ Civil War documentary was precisely my first thought.
      And all the government documents and photos declassified after 75 years the second.
      Comes a point when the past becomes history and it belongs to everybody,like it or not. Especially is some don’t like it.

      This sounds like another attempt to control the narrative for ulterior purposes.

  3. Just a money/rights/virtual signalling attempt to stir things up as people are getting desensitised to BLM and all the other ‘we are special and deserve more rights/privileges without having to actually earn/work for them’.

    Harvard should simply (and publicly) counter-sue for any court costs and legal fees this may cost them.

    On a personal note, I ran into a case of this back in ’77 in the Air Force. I got to listen to ‘someone of color’ whine that his grandparents had been slaves and as a white person I somehow ‘owed’ him for that. I in reply told him none of my grandparents had any slaves, so ‘I’ owned him not a bit – and shouldn’t we now get back to our assigned tasks? I found out later he raised to up the old flagpole and the ranking NCO of our section soundly shot him down (he had Hispanic shading but was pale for his race) I was simply told there was no race or color in the shop – only men (at that time) keeping aircraft flying.

    I still don’t judge people I meet by race or by sex, only by their actions/interactions with me and those around us.
    Funny how upset some get when it’s their own actions that then earn them my judgement.

    • Every once in a while, including recently, the matter of reparations comes up. Which leaves me wonder, what price exactly do they want to give up the talking point for eternity?
      It might be worth the cost.

      • “It might be worth the cost.”

        It won’t be as once you give any of them anything then all the others want you to give as well. (And then the next generation comes along and wants theirs too – and won’t accept that their parents already blew their kids share of it …)

        As MB was pointing out the removal of those Civil War monuments, let’s do the same with all those civil liberty monuments as well. Just step back and watch those people howl when it’s suggested to rename all those MLK streets in many towns/cities and all those MLK statues. Fair is fair – yes?

        I do sometimes have to wonder if certain parties are encouraging all this hoopla in the hopes those ‘BLM/SJW/all the others protesting anything at all’ groups takes it too far and allow some new laws to go through (think of the privacy laws struck down after 9/11) which will give the government more control over ‘free speech’. After all, anything that can be used to force one group to shut up should then work equally well on ‘their’ group – something they don’t seem to realize …

        • There you go, wondering… 🙂
          That’s what thought experiments are for: to get you to wonder. Wonder what if, wonder why, wonder how would something play out all the way through…

          Thinking things through isn’t terribly common these days.

          In this case: if there is no sunset to claims over the past and everybody gets to erase the parts that offend them doesn’t that pretty much erase everything? And very quickly. Everybody creates the past that suits them and pretty soon everybody has their own custom past and nobody else shares it.

          Erase the pictures of slaves being abused and you end up erasing the pictures of the slavers. Erase the offending evidence and soon the offense is erased too. That was some nasty stuff (by modern standards) that Harvard was involved in. It might actually be to their benefit to go along and delete the evidence so they can pretend they were pure as the driven snow.

          Same as the southern governments removing Civil War monuments and relics. “What monuments?” can easily become “what war?”, “What Civil rights movement?”, and eventually “We have always been at war with eastasia”.

        • Every now and then, I fantasize about going back in time, not too far, to correct some great wrong.
          But then, I remember, that I have nieces and nephews, and many other acquaintances, all of whom were born since any one of those great wrongs.

          If I was able to go back and, say, take out McVeigh’s front passenger side tire somewhere along I-35, causing him to miss his appointment with the Murrah Building, a great many people whom I know today, including relatives, would not have been born. A great many other people would have been born in their place.

          When I think of the terrible things those who came before us did to others who also came before us, I must remind myself that those of us here, today, owe our very existences to that exact course of events, no matter how vile.

          If you owe your very existence to a terrible injustice which was committed upon your ancestors, do you really have standing to demand anything from an institution which was involved in that injustice?

          • Alternate history fan, I gather? 🙂
            Yeah.
            You never know if the alternative might’ve been worse.
            (That is the basic assumption on THE FLASH, both in comics and in TV. Yes, he can travel through time as easy as running a sprint. But he’s learned that even small changes have unexpected consequences.)

            Stop McVeigh? Maybe he goes elsewhere. Or he gets caught but inspires three idiots in three cities.

            Luckily that’s not a problem we have in the real world. We have trouble enough juggling one timeline.

            • Oh, my belief that “fixing” things in the past might make things in the present worse was seeded when I learned that the sinking of the Titanic was a driving force in both several areas of maritime safety, (some of which I was aware of, but only some,) and a de-escalation of the class system that was taking hold in the United States.
              It seems rich people getting on the boats, in large numbers, while the poor were locked below and left to drown, caused waves, the effects of which can still be felt in the shape of society today.

              (Although I still fantasize about undoing the closure of part of Pennsylvania Avenue, and the circumstances that led to the creation of the TSA.)

              No, I meant that if you can trace your lineage to some terrible tragedy, such that it can be reasonably said that you only exist because of that tragedy, are you truly a victim, or only an unequal benefactor?

              The victims are those who were enslaved, but all of their descendants would almost certainly not exist today to demand their pound of flesh, if that injustice had not been visited upon their ancestors. If there is justice to be done, it’s not the descendants who should be recompensed.

              Further, the institution, in this case, is composed of people. Not one of those people, alive today, was culpable in the crimes of the institution over one hundred years ago.

              What’s more, the crime was committed not by one institution, but by a whole society, which persists today, and the “victim” is a member, who has benefited from what that society has grown into.

              What it now amounts to is, one person, who has by accident of birth, and only a little of their own deeds, lost a lottery, (or only got a small payout, relative to the jackpot), being born into a position of less privilege, demanding a larger part of the jackpot, from those who, also mostly by accident of birth but possibly some of their own deeds, won that same lottery or one like it.

              • Jumping on the Godwin wagon, we’re all here because of Hitler.

                • I’ve seen it suggested that absent the austrian painter, there wouldn’t have been one big war followed by decolonization but rather a long ongoing cycle of regional wars and rebellions as part of “the great game” that never would have ended, just changed pretexts. Seeing that coming back in Africa, there is some logic behind the idea.

                • I’d say we lucked out that someone as incompetent as Hitler remained in power for so long. I’d hate to imagine how things might have turned out if one of his equally evil, but competent, underlings had taken over managing the war.

                  Quick edit. We can also thank Genghis Khan, Henry Tudor, Hannabal, Caesar, Charlemaigne, etc, for our personal existences.

              • Interesting thoughts.
                It reminds me of those Second and third generation Jewish immigrants who constantly complain about the Holocaust who don’t realise that if it wasn’t for that tragic event, their ancestors wouldn’t have been able to come to America in the first place and they wouldn’t have the lives they currently do.
                Although in that case, society has decided to recompense them. for some reason.

                • I really don’t know what kind of recompense you’re talking, other than having stuff that was stolen from their parents and grandparents returned to them.

                • Pre WWII America had a deep strain of anti-semitism. What remains today is bad enough but it used to be way, way worse.

                • Terrence OBrien

                  And, it’s getting way, way worse.

  4. As a lawyer, looking at the issue objectively, under extant law, I can’t come up with a cause of action that would inure to the relative today. I can imagine there would be hurt feelings from seeing one’s great-grandparents displayed in a century-old nude photograph, however hurt feelings alone will not rise to an actionable set of facts without more. Sorry, but I have to rule against this case proceeding. Motion to dismiss is granted.

  5. I live in the American South where Civil War monuments are currently being debated. The city of Winston-Salem, NC, declared that a downtown monument to the Civil War dead was “a public nuisance because of the potential for violence.” It was removed by the city. As someone who likes to substitute one thing for another when I’m trying to figure out where I stand in a discussion, I asked myself if I would agree with that statement if the statue was of Martin Luther King, Jr. who offends some people who are happy to riot about it. I did not, so, I’m not a fan of Winston’s decision. Destroying or hiding history is not the answer. Leave these photographic images where they can be shared with scholars and protected.

    • Think of these things as story fodder.
      For mysteries, they can offer up rationale for murder. For romance, work or relationship conflict. For SF extrapolation points for dystopia (a world where history is swept away every 30 years–suddenly, LOGAN’S RUN isn’t quite as preposterous). For fantasies, medieval theocracies. Lots of untapped material surrounds us these days.

      Just avoid tradpub YA. 😉

    • If you remove history, it’s easier to repeat.

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