Monday, June 6, 2016

Shouldn't a Contract Mean What it Says? I: The Return of Rights Letter

Note:  This is the first entry of a two part analysis of the contracts at issue in Harvard vs. Steve Elmore and the book In Search of Nampeyo: The Early Years, 1875 - 1892.

In this essay I will look at the controversy around the return of rights or Formal Notification letter that was delivered to Mr. Elmore in January, 2014 when the Peabody Museum Press rejected the manuscript of In Search of Nampeyo.  Mr. Elmore read this letter, did his due diligence by checking its meaning with two attorneys, and then self-published his book.   Here is the letter: 

As you can see, the letter returns to Mr. Elmore “all rights in the manuscript…including all versions of the manuscript submitted to the Peabody Museum Press” and that “The Board recommends that you find a magazine or trade publisher…to publish the work.”  Orally and in later emails, Ms. O’Donnell recommended two university presses and a particular trade publisher as alternative places to publish the manuscript.  There are no clauses in this document reserving rights for the Peabody Museum Press or for the Peabody Museum.   There are no constraints or special conditions put on Mr. Elmore’s ability to publish.  While particular venues for publication are suggested, he was not required to use any of these venues.  

This Formal Notification is a legal document written on behalf of the whole Editorial Advisory Board, which included Jeff Quilter, the Peabody Museum director, Steven LeBlanc, the Director of Collections, and Project Manager Donna Dickerson, among others.  Mr. Elmore read the letter as representing the position the Board took with regard to his manuscript.

The original book contract, called the “Letter of Agreement”, defines “manuscript” as “electronic and hard copy; including front matter, text, bibliographic references, copies of illustrations, and figure captions.”  It also states that Mr. Elmore’s book was a “work for hire”.  The United States Copyright Act says all rights to a work made for hire vest originally in the author of the work, in this case Harvard. Because all rights, including publication rights and rights of copyright, were initially vested with Harvard when Mr. Elmore was working for Harvard under the Letter of Agreement, these same rights were returned to Mr. Elmore in the Formal Notification letter.

However, In their suit against him, Harvard claims that “manuscript” only refers to the text, and that Mr. Elmore had not been given permission to publish the photographs he took while doing research in the Peabody Museum collections.  I will examine the complex array of issues around the photographs in my next blog entry.  For the sake of understanding how the Formal Notification letter should be interpreted under New Mexico law, we need to turn for guidance to New Mexico case law and some Uniform Jury Instructions. 

Using New Mexico case law we learn that language in a contract, if not specifically defined, is taken as having its customary or “dictionary” meaning and a term must be interpreted “in its usual, ordinary, and popular sense”, “…clear and unambiguous clauses must be accepted as the expression of the intent of the parties, and enforced by the courts as written.”….“Resort will not be made to a strained construction for the purpose of creating an ambiguity when no ambiguity in fact exists” (Battishill v Farmer's Alliance).   In the Formal Notification letter, “all rights” would mean exactly that. Harvard attempts to read into this contract a meaning different from the clear words on the page and to insist that this contract be understood according to other facts or principles not stated; according to New Mexico law, this should not be successful. Any uncertainties as to meaning “must be construed most strongly against that party which drafted the contract” (Schaeffer v.Kelton).  Mr. Elmore should not be required to guess at any secret meanings or intentions.  He is required to read and follow the contract as delivered to him, especially as he had no part in drafting it. 

Harvard offers a strained reading of this letter that requires many additional assumptions. For instance, Harvard claims that the “10 - 15 high quality existing Peabody photographs” were meant to substitute for over 100 ceramics, carefully arranged in groups, that Mr. Elmore used to demonstrate his thesis.  Harvard insists that this offer of free photographs has the obvious meaning, without their stating it explicitly, of a prohibition on Mr. Elmore using his own photographs.  Ms. O’Donnell admitted in court testimony at the injunction hearing (p. 124) that there would be “very little value” to Mr. Elmore's work without his own photographs, yet Harvard insists he should have understood the letter in this nonsensical manner.

When questioned in her deposition (transcript in preparation) about the offer of photographs, Ms O’Donnell, the author of the letter, seemed to have no idea what she meant by it, she "was not saying one way or the other” whether the offered photographs were meant as substitutions or in addition to Mr. Elmore’s photographs.  Suddenly, after litigating this case for a year, Harvard offered a new interpretation of this phrase in their latest motion for summary judgement on the Permission to Photograph Collections contract.  Now, these photographs are starter photographs, and not the substitutes for all of Mr. Elmore’s Keam collection photography that Harvard had insisted on all along.   This serves to demonstrate the very poor quality of this contract.  The editor does not seem to know what it means and Harvard’s attorney feels free to change his own interpretation at will to fit present circumstances.  Mr. Elmore understands this phrase to mean only what it says; it is an offer of 10 - 15 existing photographs from the Peabody Museum that he can use in his book free of charge if he wants to.  That is what the contract says.

In addition to controversy about the meaning of the Formal Notification letter, there is also uncertainty about its status.  The judge ruled that the Formal Notification, on which Mr. Elmore relied when he published his book, was not part of the contract because Harvard “could have written something different” in that letter.  “The contract does not require Harvard to return the rights if the manuscript was not approved for publication...Consequently, Harvard’s alleged failure to honor its subsequent decision to return rights to Mr. Elmore never denied Mr. Elmore of his “reasonable expectations arising from the Contract.” (Case 1:15-cv-00472-RB-KK  Document 137 Filed 04/22/16  P. 10).   This ruling confuses me; I think it means that since the original Letter of Agreement did not have a termination clause that specified exactly what would happen with the manuscript if the press decided to reject it, the Formal Notification letter is not to be strictly construed as part of the Letter of Agreement. 

However, Harvard did choose to write and deliver exactly the letter that Mr. Elmore relied on when he made his decision to publish the manuscript.   Mr. Elmore would naturally consider the definitions of “work for hire” and “manuscript” from the Letter of Agreement and read and follow the policies in the Permission to Photograph Collections form (more on that next time) when making his choices.  If we look at Luther Wilson’s expert testimony (p. 14 - 20), he includes a well written, professional Publishing Agreement which has, for instance, specific arbitration and termination clauses.  This would have been preferable to the vaguely worded Letter of Agreement that Mr. Elmore and Ms. O’Donnell signed.

Rather than being a part of the contract in a strict sense, the Formal Notification letter would now be considered an “accord and satisfaction” under New Mexico law.  According to the Uniform Jury Instructions, this apples “to all transactions where discharge of a contract duty occurs through acceptance of something in substitution”  (UJI 13-836).  In this case, Mr. Elmore accepted the return of rights to his manuscript and the ability to publish it elsewhere in lieu of the Peabody Museum Press publishing his book.  Harvard offered this, and Mr. Elmore accepted it.   

The fact that Harvard is now suing Mr. Elmore for doing exactly as they recommended can be viewed under the doctrine of “promissory estoppel”.  The elements of promissory estoppel are “(1) An actual promise must have been made which in fact induced the promisee’s action or forbearance; (2) The promisee’s reliance on the promise must have been reasonable; (3) The promisee’s action or forbearance must have amounted to a substantial change in position; (4) The promisee’s action or forbearance must have actually been foreseen or reasonably foreseeable to the promisor when making the promise; and (5) enforcement of the promise is required to prevent injustice”  (UJI-13-815).   

In this case, the return of rights and recommendation to publish elsewhere were clear and Mr. Elmore relied on the promise and invested the time and money to ready the book for publication and to print it.  Harvard, who recommended this course of action to him, could have reasonably foreseen that this would occur.  A manifest injustice would occur should Harvard prevail in its claims against Mr. Elmore in this instance.  Harvard’s own interpretation of the Formal Notification letter amounts to denying Mr. Elmore the opportunity to publish the fruits of his 25 years of research together with the evidence he had created in the form of pottery arrangements. The Peabody Museum enjoys the many benefits of the work Mr. Elmore did for them, while under contract to produce a book, in terms of increase in the prestige and value of their Keam collection and use of his attributions of pottery to Nampeyo.  

The Formal Notification letter was signed by editor Joan O’Donnell, but written on behalf of the entire Editorial Advisory Board.  Mr. Elmore naturally thought that the letter included the input of others on the board who represented the interests of the Peabody Museum (director Jeff Quilter and director of collections Steven LeBlanc) and the press (production manager Donna Dickerson).  Though Joan O’Donnell stated in her testimony at the injunction hearing that she could have written whatever she wanted in the letter “subject to…review by attorneys or by museum policies” (p. 115), there is no evidence at all that anyone else helped draft the letter or reviewed it before it was sent.  It seems that everyone involved, including Harvard’s own attorneys, simply accepted, without question or any wider inquiry, Ms O’Donnell’s personal account of and interpretation of this letter.  As was also the case with their copyright infringement charges, Harvard sues first and asks questions later.

 This is the fifth in a series of blogs about In Search of Nampeyo and Harvard's lawsuit against Steve Elmore. Future essays will deal with another contract in this case, legal aspects of peer reviewer anonymity, and abuse of the legal system.



  1. My name is Mort Gerberg. I have been an award-winning, multi-media cartoonist for over fifty years, known primarily for my single-panel cartoons in The New Yorker Magazine. A full summary of my mostly satiric work, in magazines, books, newspaper syndication and television, can be found on my website,
    I believe that nothing that I ever have written or drawn as satire can compare with Harvard's action against Steve Elmore. It is straight out of Alice and Wonderland. If I had made up this Harvard vs Steve Elmore story and submitted it for publication, my editors would have rejected it because it was poor satire --- for being much too far removed from reality --- and being ABSOLUTELY unbelievable.

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