Thursday, July 28, 2016

Museum Collections, Museum Images, and a Museum's Reputation

One major point Harvard has argued in their lawsuit against Mr. Elmore and his book In Search of Nampeyo is that the photographs Mr. Elmore used in his book were "amateur snapshots" which are so "shoddy" that they have caused the Peabody Museum at Harvard University "irreparable harm".   Harvard argued in its opening remarks at the injunction hearing that "....every person, every organization who buys the being told that the museum is now a slipshod organization that no longer maintains and upholds the professional standards for which it has come to be known" (p. 7).  When asked at the injunction hearing if she had looked at the photographs in Mr. Elmore's book, Director of Collections Kara Schneiderman testified  "I have looked at them all, and they don't meet the basic standards that we would require for publication photography.  These are very much research images and examples of why we have the photography agreement to begin with, to avoid situations in which this quality of image is reproduced in a publication"(p. 37).

Mr. Elmore offers as evidence to the contrary that his book received a dozen positive reviews, many of them praising his photography, and has won four national book awards including awards for best art book and best interior design.  In Search of Nampeyo won a Gold Medal from the Ben Franklin Book Awards, the only award for which judges' comments are sent to the author.  Here are some quotations from the judges:

"This is a fine example of the true art of bookmaking"

"Outstanding visual matter"

"The strength of the book is in the photography.  It draws a reader in even if he doesn't have a great interest in pottery"

"What a beautiful book!  Well done!  And fascinating too."
The Peabody Museum Press submits its own books to these same awards organizations and advertises the prizes they win on their website, proud that the excellence of their books has been recognized.  Despite the claims Harvard made in court, objective evidence points not to the shoddiness but to the excellence of Mr. Elmore's photography and the quality of the book that Harvard chose not to publish. 

How does Harvard support its argument that Mr. Elmore's book has caused them "irreparable harm"?  In the injunction hearing Harvard made many specific claims about its high standards for photographic depictions of objects in their collections and compared Mr. Elmore's photographs unfavorably with their standards.  It is instructive to look at photographs in Peabody Museum Press publications in order to assess their stated standards.   Here is a page from Steven LeBlanc's Symbols in Clay (2009).

During testimony, Ms. Schneiderman  spoke of the need for neutral backgrounds, that pottery not need conservation, that the lighting be even, that the color be correct, and that each photograph have an approved caption.  Harvard stated its standards for captions.  They are the inclusion of the object's Museum number, origin and the materials, donor acquisition information, ownership and copyright information.  The above caption clearly does not contain all the required information, the lighting of the bowls is uneven as can be seen by the internal shadows, and the color of 2a is more yellow than it should be.  Thus, many of their own stated standards are violated in their own publication.  Symbols in Clay is in the exact same series, the "Papers" series, for which Mr. Elmore's book was intended.   In fact, both Mr. Elmore's and Mr. LeBlanc's books have photographs that easily meet expected standards for scholarly publications in the field. 

Harvard justified its standards in the injunction hearing, stating  "And the only way a museum of world renown can operate is with very strict standards regulating and protecting their collections and the way those collections are presented to the world" (p. 6).   Harvard seems unaware that many world renowned museums do not share the Peabody Museum's restrictive policies.  Many museums respect public domain and do not attempt to exercise control over the photography and use of photographs of objects that are no longer under copyright.  Many world renowned museums such as the J. Paul Getty Museum and the Metropolitan Museum of Art have "open access" or "open content" policies, encouraging free use of their own images.

This is from a press release from the Metropolitan Museum about its policy:  "...The Metropolitan Museum of Art, announced today that more than 400,000 high-resolution digital images of public domain works in the Museum's world-renowned collection may be downloaded directly from the Museum's website for non-commercial use--including in scholarly publications in any media--without permission from the Museum and without a fee."

The J. Paul Getty's website reads "The Getty makes available, without charge, all available digital images to which the Getty hold the rights or that are in the public domain to be used for any purpose.  No permission is required".

These museums believe free access to and use of their images increases the prestige and reputation of their museums.  Certainly, the Peabody Museum can claim a legal right to employ restrictive contracts that override U. S. copyright law, including the intent of its public domain and fair use provisions. They may be within their legal rights when they deploy onerous regulations governing any depictions of objects in their possession.  But, they are wrong to state that such control is necessary to maintain a museum's reputation.

Ms. Schneiderman testified at the injunction hearing that she knew of no cases in which the Permission to Photograph contract had been broken (p. 35) and personal photographs taken of collections objects published.   One case she should be aware of is that of African-American artist Carrie Mae Weems.  Yxta Maya Murray gives a detailed analysis of this case in From Here I Saw What Happened and I Cried:  Carrie Mae Weems' Challenge to the Harvard Archive.  Here is the abstract from her article describing the situation:

In the early 1990s, the artist Carrie Mae Weems appropriated daguerreotypes of enslaved people that are housed in Harvard University’s Peabody Museum of Archaeology and Ethnology. These incendiary images of Drana, Jack, Renty and Delia had been commissioned by Harvard Zoology Professor Louis Agassiz in the mid-1800s, supposedly in order to illustrate his theory of racial difference. However, Weems had signed a contract with the Peabody promising not to use the images without their permission, and she did not seek such approval before including the daguerreotypes in her now-famous series "From Here I Saw What Happened and I Cried." Harvard threatened to sue Weems on the grounds of copyright infringement and breach of contract, though when Weems invited Harvard to conduct what she understood to be a difficult conversation about law, history, and race "in the courts," Harvard demurred.

Murray questions Harvard's moral right to own these objects and, near the end of the article, suggests a process whereby these daguerreotypes could be treated as cultural property belonging to the descendants of slaves and repatriated in much the same way that the Native American Grave and Repatriation Act (NAGPRA) of 1990 has resulted in many objects being returned to native tribes from museums.  Harvard's Fogg Art Museum, apparently not overly upset over Weems' transgression of Peabody Museum policy,  purchased some of Weems' art work made from the contested images.

Available evidence does not support the Peabody Museum's assertions that its particular policies are necessary to ensure quality depictions of their objects as they frequently fail to adhere to those policies themselves.  Neither are these policies necessary to ensure the Museum's reputation as a world class museum as many well regarded museums have no such regulations and restrictions.  Their use of contracts to override the fair use and public domain provisions of U.S. Federal Copyright law is open to debate on ethical grounds, and their use of these policies to maintain control over cultural property of Native American and Black cultural heritage has been called into question as well.  The court ruled against Harvard's claim of copyright infringement in this case, see Harvard Loses Copyright Infringement Case Against Steve Elmore, making it clear that Harvard cannot claim copyright to, and gain control over, Native American designs.  So, what is the Peabody Museum's purpose in championing these policies with such vigor?

I suspect that the underlying reasons are financial gain and a desire for control that stems much more from elitism than it does from any genuine concern for their reputation.  The Peabody Museum charges people to use high quality images from their image library and, unless permission to the contrary was given (as it was in Mr. Elmore's case) requires researchers to transfer their copyright to the Peabody Museum.  In this way, the Peabody gains control of the image and charges others who may want to use it and even charges the original photographer if she wishes to use it more than once.  A researcher can also request that the Peabody Museum create a new image and the researcher can then use that image by paying for the photography and the permission to use the image.  The fees to get an image and permission to use it in a book, if I read their website correctly, are between $70 for an existing image to $300 for one that requires new photography.

The staff at the Peabody Museum and its Press seem unaware of the elitism that governs their actions. This lawsuit has been a venue where this elitism is often on display.  In legal pleadings they declare that "Harvard University is the oldest corporation in the Western Hemisphere" as if that fact alone makes their statements true and their cause just. This attitude is demonstrated by the vagueness of their contracts and their self-given right to change the meaning of these contracts to fit present convenience.  For instance, they reneged on the clear language of the Formal Notification letter returning to Mr. Elmore "all rights" to his manuscript and recommending that he publish elsewhere.  The editor Joan O'Donnell wrote this letter without any input from her Board or the Director of the Museum, Jeffery Quilter.  Harvard proceeded to file charges against  Mr. Elmore in Federal Court even though neither the Director or anyone else at the Peabody Museum had even read this letter. There was no due diligence, rather there is an a priori certainty that anything done by an employee of Harvard University is automatically correct and just.   Similarly, Harvard had no compunction against giving Mr. Elmore's work, while it was under review at the Press, to other competing researchers, even though such a breach of confidentiality is contrary to all accepted standards of editorial and reviewer behavior.

At best they display an attitude of noblesse oblige in which they show their generosity by granting privileges arbitrarily, for instance, choosing to let a researcher maintain copyright to her own photograph.  At worst they exhibit a pervasive arrogance that allows them, for instance, to ignore any claim Mr. Elmore might have to his 25 years of research, while making full use of that research themselves.  I don't believe that any of the actions discussed here serve to bolster the good reputation of the Peabody Museum of Archaeology and Ethnology at Harvard University.

In Search of Nampeyo is now under a temporary injunction and cannot be sold.  Harvard is asking $1,000,000 in damages from Mr. Elmore.

 This is the eighth in a series of blogs about In Search of Nampeyo and Harvard's lawsuit against Steve Elmore. Future essays will deal with the legal doctrine of good faith and fair dealing, abuse of the legal system, and estoppel.

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Tuesday, July 12, 2016

Does a Contract Mean What It Doesn't Say and Other Questions Submitted for Summary Judgement

The case of Harvard v. Elmore focuses on disputes over the interpretation of three documents, the Permission to Photograph Collections (shown below), Letter of Agreement, and Formal Notification Letter.  Harvard has filed a Motion for Partial Summary Judgement on Contract Interpretation.   Harvard claims that the contracts forbid Mr. Elmore from publishing the photographs that he made while doing research for his book in the Keam Collection at Harvard University.  Mr. Elmore claims that according to these contracts, he was given the "written permission" required to publish his own copyrighted photographs in the Formal Notification letter returning to him "all rights" in his manuscript and recommending that he publish elsewhere.

A Motion For Summary Judgement is an attempt to bypass the trial process and have the judge  decide the matter according to the law and the undisputed facts of the case.  There should be no summary judgement if there are genuine issues of material fact that need to be decided by a jury. In deciding whether to issue a summary judgement, the judge must consider whether it is possible that a reasonable jury could return a verdict in favor of the party not asking for the judgement.  If he believes a reasonable jury could return such a verdict, the case should go to trial.  Two important cases for determining whether a summary judgement is warranted are the U. S. Supreme Court case Anderson v. Liberty Lobby  and the New Mexico Supreme Court case Eavenson v. Lewis Means. 

I discussed some of the issues concerning the Formal Notification letter in Shouldn't a Contract Mean What it Says.  In this entry, I will focus on the dispute around the Permission to Photograph Collections form.  In their Reply to Mr. Elmore's Response Harvard states "the Photography Agreement speaks for itself"  Let's see what it says.


In their recent motion for summary judgement, Harvard quotes from the document as follows:  "No such photographs made by me will be publicly exhibited in any manner or medium, or reproduced . . . .  They omit the phrase "I understand and agree that any other use will require the prior written permission of the museum and shall be governed by the photographic policies of the Peabody Museum and Harvard University."   Notice that this form gives no indication of who should or could give the permission or what form the permission should take.   It does not indicate that photos must be submitted or who must submit them.  It does not refer to any named documents or say where such documents can be found.  When Mr. Elmore was preparing his book for publication, he went back to this contract, and followed the policies given on this form, using the museum number for each piece of pottery and using the credit line  "Courtesy of the Peabody Museum  of Archaeology and Ethnology, Harvard University"  This information was included in an addendum to the book.

Harvard further argues that  "...the Photography Agreement provided a process for seeking and acquiring permission from the Museum to publish research photographs—involving photographic quality review and transfer of copyright—a process Elmore admittedly did not follow."  If you read the above "Photography Agreement" you will see that no such process is outlined in the document.  A further, though perhaps minor point, is that "photographic policies" is not capitalized in the Permission to Photograph form, though they are always capitalized "Photographic Policies" when mentioned by Harvard.  Capitalizing these words conveys that there are actual named documents with this title.  Even such a small detail as this might have prompted Mr. Elmore to wonder about and ask for these documents. 

The crux of the matter here is that there are other photographic policies than the ones on this signed contract.  Mr. Elmore was never told about, referred to, or given these policies and so was completely unaware of their existence before publishing his book.  Harvard writes:

"Mr. Elmore admitted he has internet access but never looked for the policies".  Elsewhere they write:  "The Museum’s Photographic Policies were available to Elmore online. As they existed at the time, they provided:  In rare circumstances, the Museum will allow a researcher to publish his or her own photograph of a Peabody Museum object. The procedure for seeking permission involved a review of the photograph quality and the transfer of copyright for that photo to the Peabody Museum. For information on seeking permission to publish your own photographs, click here."

Harvard argues that they were on the Peabody Museum website and since Mr. Elmore was aware of the website, he had an obligation to look through every page, and if he had, he would eventually have found the page which refers to these policies and the link to the email address he needed to write to in order to officially submit his photographs for review.  I have used websites in which users had to agree to follow all guidelines and policies before they could access the site, but the Peabody Museum site was not one of these until recently.  I'm rather sure that this change and others were triggered by the present litigation.  The Peabody Museum has updated its website to be more in line with what is typically done on other museum websites.  This change indicates their realization that their website previously lacked clarity on this issue.  You can now find the following statement in red in the beginning of their  "Terms of Use" page:

Use of the website (the "Site") is subject to the following terms and conditions and all applicable laws. By using the Site, you accept and agree to be bound by these Terms of Use. If any of these Terms of Use are unacceptable to you, do not use the Site.
An additional legal question is whether a person can be held responsible for following the terms of a contract that he never signed, or even knew existed.  Harvard emphasizes the need to transfer copyright of personal photographs to the Peabody Museum before permission to use personal photographs is granted.  The contract pictured above, that Mr. Elmore signed, only states "I agree to provide the Peabody Museum with copies of these photographs free of charge upon request at any date".  The copyright transfer provision is present in the Contract for Permission to Use or Publish Photographs, a four page contract that Mr. Elmore neither saw nor signed.  Does the Peabody Museum have any obligation to provide the policies researchers are expected to follow?  Harvard argues that they do not.  They also hold Mr. Elmore liable for violating the terms of a contract that he did not sign, or even see.

Not only did the Peabody Museum fail to inform Mr. Elmore of the policies, but Peabody Museum Press editor Joan O'Donnell purposely concealed the existence of these policies from him.  As the Permission to Photograph form was a contract with the Peabody Museum, not its Press, I would expect that the Museum would administer its own contracts. However, they did not and instead left the administration of their contract to Joan O'Donnell.   After Mr. Elmore sent out a pre-publication announcement for In Search of Nampeyo, Ms.O'Donnell sent Museum staff a draft letter on January 12, 2015 that she intended to send to Mr Elmore.  This email message included a reference to  Museum's Photographic Policies cited above and the website link.  On that day and the next she got feedback from Museum staff, none of whom recommended that she remove the reference to the Policies and the website link.  In fact, Kara Schneiderman, the Director of Collections wrote " sounds like we do need to clarify what he may have been told or if pertinent policies were communicated."  As you can see by looking at this email chain Ms. O'Donnell removed the Photographic Policies reference and website link before sending an email to Mr. Elmore, only referencing the Permission to Photograph Collections form in her letter.  Thus, Mr. Elmore was left to go back to the contract he had signed and was left wondering what Harvard meant when they said he did not have permission to use his photographs. 

I will write more about what I perceive as Harvard's abuse of the legal system in another blog entry, but here is a taste of how they have conducted themselves throughout this lawsuit.  Prior to the first hearing in this case, the hearing in which Harvard was granted a temporary injunction against In Search of Nampeyo,  Mr. Elmore answered many interrogatories (written questions put to one party by the other party and that must be answered), delivered all requested discovery documents to Harvard, and was deposed for seven hours.  Although Mr. Elmore had submitted interrogatories to Harvard and requested many discovery documents needed to defend himself, he had not one document prior to the injunction hearing.  Why?  Because Harvard asked the judge for an extension until after the hearing date, claiming that editor Joan O'Donnell was having "cancer surgery" and was not well enough to gather documents.  Ms O'Donnell did not, in fact, have cancer and did not need the long extension granted her.  Harvard now uses testimony Mr. Elmore gave in this hearing against him, quoting answers that would have been much different had he had the benefits of discovery and deposition that Harvard enjoyed.  For instance, Harvard states "At the preliminary injunction hearing, Elmore admitted he did not follow this process and never even looked at the policy" as if he purposely ignored them.  In reality, he first learned of the existence of these policies at the injunction hearing.  

For this Motion For Summary Judgement, the judge must decide if the facts and the law are clear and unambiguous such that he feels confident making a ruling without a trial, or whether there are substantive unresolved questions that must be submitted to a jury.  In making this decision, the judge is to construe the evidence in favor of Mr. Elmore.  I have discussed above one of the issues under dispute.  Here are some other points of contention argued by both sides in these  documents:

*Whether the Formal Notification Letter is an Accord.

*Whether Promissory Estoppel applies.

*Whether the free offer of 10 - 15 existing photographs from the Peabody Museum has the clear meaning that Mr. Elmore could not use his own photographs.

*Whether the substitution in Mr. Elmore's published text of a slightly different view, taken in the same photo shoot, of the "jack-in-the-box" is excluded from the return of "all rights".

*Whether Mr. Elmore's manuscript is actually a "work made for hire" as the Letter of Agreement states.

*Whether all the provisions of the Letter of Agreement Mr. Elmore signed with the Peabody Museum Press, that set out the terms under which the book would be produced and published, remain in effect after the book is rejected and "all rights" are returned to Mr. Elmore.

*Whether the fact that the editor herself submitted some of Mr.  Elmore's photographs for approval and they were approved in terms of publication quality has a bearing on the case.  Along with this is a question as to whether the Advisory Board's stated desire to "be very liberal" with letting Mr. Elmore use his own photographs has a bearing on this case.
Here are Mr. Elmore's Reply to Harvard's Motion and Harvard's Response to Mr. Elmore's Reply

We expect a ruling within the next few months.  There is a settlement hearing scheduled for the end of August in which the two sides can try to come to a mutually agreeable settlement of the case.

If you haven't already, please sign this petition on asking Harvard to drop charges against Steve Elmore and to stop suppressing In Search of Nampeyo:  Free Nampeyo Petition

 This is the seventh in a series of blogs about In Search of Nampeyo and Harvard's lawsuit against Steve Elmore. Future essays will deal with photography and publication of museum artifacts,  abuse of the legal system, and estoppel.