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

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.