Sunday, May 22, 2016


Note:  This case is still ongoing.  Harvard's copyright infringement charges were the subject of motions for partial summary judgements, and the judge ruled against them as discussed in detail below.  However, Harvard's breach of contract claim against Mr. Elmore is still open and will be discussed in the next two blog entries.

The first entry in the Free Nampeyo blog discussed Harvard's copyright infringement claims against Steve Elmore's book In Search of Nampeyo: The Early Years 1875 - 1892.   You can read Why is Harvard Claiming Copyright to Native American Designs? for more background.

The subject of Harvard's complaint was whether color illustrations of designs on old Hopi pottery held in the Keam collection at Harvard's Peabody Museum violated the copyright to their black and white photographs of this pottery.  Mr. Elmore filed a motion for partial summary judgement against this claim, asking the judge to consider the law and the facts and make a ruling.  Harvard also filed a cross-motion for partial summary judgement concerning a photograph of a Kayenta or Tusayan jar that appeared on its website and also in Mr. Elmore's book.  Both claims were decided by Judge Robert C. Brack of the United States District Court in Las Cruces, New Mexico.  Judge Brack's ruling "Grants Defendant's Motion for Partial Summary Judgement (Doc.92); and Denies Plaintiff's Cross-Motion for Partial Summary Judgement that Elmore is liable for Copyright Infringement (Doc. 109). " His whole opinion is linked at the end of this post.

Determining whether copyright infringement has occurred can be a complex matter.  The decision depends on two basic factors.  The first is whether the underlying work is copyrightable at all and, if so, which elements of the work are subject to copyright.  The second is whether the work accused of infringing on the protected aspects of the underlying work in fact does infringe. The present Opinion is a good example of sorting out the fine points of such a case, thus the rest of this essay will look at the details of Judge Brack's decision.  

Below is the photograph of the Kayenta or Tusayan jar that was the subject of Harvard's cross-motion for partial summary judgement.  Judge Brack's Opinion is that this is not a copyrightable photograph.

Quoting from the Compendium of U. S. Copyright Practices, third edition "as with all copyrighted works, a photograph must have a sufficient amount of creative expression to be eligible for registration".  A photograph should not be registered "if it is clear that the photographer merely used the camera to copy the source work without adding any creative expression to the photo".   Judge Brack argues that this photograph is just such a case.  It was not taken as a study in photography or crafted by the photographer with carefully chosen lighting and background, but rather was a "conservation image" taken as part of a "condition assessment" while the jar rested on a surface with a bunch of other stuff visible behind it.

The second part of the Opinion is more complex.  It involves 41 illustrations created from designs visible in the black and white photographs of pottery that were published in the book Historic Hopi Ceramics (HHC).  Below is a comparison of two of the black and white photographs and the illustrations created from them.

First Judge Brack determined that, unlike the photograph of the Tusayan or Kayenta jar discussed above that is not copyrightable, the black and white photographs in HHC show "a minimal degree of creativity--if only a humble spark".  Decisions were made to photograph each ceramic in the same way and to strip the backgrounds from each of the individual photographs "to emphasize the impact of the collection as a whole rather than the intricacies of each individual piece."  However, just because a photograph is copyrightable does not mean that "every element of the work is protected....the less original the plaintiff's work, the more the defendant must copy to infringe on the plaintiff's copyright."

Importantly. Judge Brack finds that the Native American designs on the pottery and the form of the pottery are not copyrightable elements of Harvard's photographs: "Here the copyright of Historic Hopi Ceramics does not protect against copying the most prominent features in the works: the intricate pottery designs and forms achieved by a Hopi potter, perhaps Nampeyo." (emphasis added). 

Judge Brack notes that the protection of the HHC photographs is "incredibly limited" and only a verbatim copy would violate a copyright with such a small amount of creative input from the photographer.  He observes that Mr. Elmore's illustrations highlight the designs, which are non-copyrightable elements, and switch the emphasis from the condition of the pots as a whole collection to these design elements.  The illustrations use line art and are in color.  They clean up and bring out elements of the designs, while eliminating aspects of the pottery itself, such as fire clouds.  Judge Brack writes: "Considering only the  protected elements in the Historic Hopi Ceramics photographs and Mr. Elmore's images, reasonable minds could not find substantial similarity between the two." 

He also notes that Mr. Elmore picked individual ceramics to use in his illustrations and did his own arrangements of them, in order to emphasize comparison of the designs.  Mr. Elmore's use of these ceramics to establish a novel thesis would give his work protection under the fair use doctrine.

I have to wonder why Harvard brought this copyright infringement suit against Mr. Elmore in the first place.  His use of illustrations of designs seen in photographs is quite common in ethnology and archaeology publications and is a long standing practice.  Illustrations done from photographs of pottery in a museum are used, for instance, in Symbols in Clay, a 2010 publication from the Peabody Museum Press.  Why is The Peabody Museum Press at Harvard suing Mr. Elmore for doing the exact same thing that they did in a recent publication?  Why didn't the editor, Joan O'Donnell, consider this before pursuing this charge?  Why didn't the Peabody Museum Director, Jeff Quilter, point out this obvious fact before a lawsuit was filed?  Why didn't Harvard's legal counsel do even the most cursory inquiry about the use of illustrations of pottery designs in publications before filing this suit?

Perhaps some sense of this can be made by looking to Harvard's expert witness report. On page 5 of his disclosure, Thomas Chavez, retired director of the Palace of the Governors in Santa Fe, New Mexico, writes that museums often charge fees for the use of their copyrighted photographs, and indeed, the Peabody Museum at Harvard charges such fees and they constitute one of their revenue streams.  It is possible that the Peabody Museum was eager to extend the reach of its copyrights, thus enlarging the number of photographs that could generate income for the museum.  It is also possible that this copyright infringement charge was frivolous and/or vindictive in its motives.  If this is true, then neither the facts of the case nor the law were important elements in the decision to bring the charges.

Mr. Elmore is grateful that this ruling found him innocent of copyright violation charges and that the Native American designs he used in his book are still freely available to all, but especially to the Hopi/Tewa potters who consider them such an important part of their cultural heritage.

Mr. Elmore would like to thank his attorneys, Christopher DeLara and Jonathan Garcia of the Guebert Bruckner law firm in Albuquerque, New Mexico for their hard work, clear thinking, and fine writing in pleading this matter before the court.

Opinion and Order MSJ

 This is the fourth in a series of blogs about In Search of Nampeyo and Harvard's lawsuit against Steve Elmore. Future essays will deal with the contracts and abuse of the legal system.

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  1. Thanks Linda for this important post on Harvard, which like the government--tries to overreach. One must stand up to tyranny.

  2. This comment has been removed by a blog administrator.

  3. Looking forward to your update describing the case resolution

  4. Nice blog and great post. Thanks for updating.
    Copyright trolls can turn a nice profit operating in this fashion. Assuming they identify only 10,000 of the 50,000 people they sued, they could settle with each defendant for a couple of thousand dollars per person. That amounts to a very large sum of money for very little work on the lawyer’s behalf.
    Copyright infringement lawyer