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.
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."
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 "...it 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 change.org 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.