Friday, September 30, 2016

Settlement Reached; Injunction Lifted, In Search of Nampeyo Is For Sale Again!

Harvard v. Elmore has settled out of court.   In Search of Nampeyo: The Early Years 1875 - 1892 is NOW FOR SALE AGAIN.  This award winning book documents for the first time that many early works of the great Hopi/Tewa potter Nampeyo are in the Keam Collection at the Peabody Museum at Harvard University.  Mr. Elmore arranges groups of pottery to demonstrate the evolution of Nampeyo's early work.  Over 100 pieces of the pottery are depicted in high quality, full color photographs for the first time.  Mr. Elmore also discusses Nampeyo's art in light of the Modernist art movement.
Purchase a copy here.

This positive outcome would not have been possible without the hard work of Mr. Elmore's attorneys Christopher Delara and Jonathan Garcia of the Guebert Bruchner  in Albuquerque, New Mexico. Also crucial were the many people who signed the Free Nampeyo petition on  Mr. Elmore thanks everyone who showed their support during this difficult time by stopping by, calling, writing letters, and even writing a song.

It is said that a good lawsuit settlement leaves both sides dissatisfied.  I believe that the present settlement fits this maxim nicely, though naturally both sides will state their own perspective on it. Here is the final settlement agreement.  Prior to finalizing the agreement Harvard prematurely issued this press release.

As part of the settlement, Harvard gets to tip-in a page to each of the books.  Harvard's page contains two paragraphs.  The first reads:

The photographs attributed to the “Peabody Museum” or the “Keam Collection” were published without the Peabody’s permission or review, in violation of the author’s contractual obligations. Many of the images have been altered by photo- editing software. The Peabody does not verify that the images are accurate representations of the objects in its collections.
Similarly, photograph caption information was not reviewed or approved by the Peabody and does not meet Museum standards. 

Mr Elmore comments that the excellence of the photographs and the book are attested to by its many national awards and positive reviews.  The Peabody Museum chose not to do the work to supply Museum approved captions, though Mr. Elmore offered to include any and all corrections in an addendum.  The Peabody Museum Press and Peabody Museum staff chose not to review all the photographs; indeed considerable effort was expended to conceal any review processes from Mr. Elmore.   

Their second paragraph reads:

The image on page 182 identified as a Peabody postcard is a screen shot from an old version of the Museum’s online database. This photograph was not approved for publication. The image in this book has been altered by the author to look like a historic postcard. The Peabody denies that any such postcard exists.

Mr. Elmore comments: This second point is puzzling.  Harvard draws attention to an image that is not copyrightable because it is a simple snapshot of a prehistoric ceramic.  It is in the public domain and may be freely used by anyone for any purpose.  Mr. Elmore stated that the image was photographed from a postcard and in an early pleading, Harvard claimed to also own a copy of this postcard: "Defendants [Elmore] also published at least two photographs misappropriated from the Peabody Museum's own the Infringing Book is a large copy of an old postcard from the Peabody Museum".  Why does Harvard now claim that the postcard does not now exist?

Harvard states in their Press Release that they considered Mr. Elmore to have "doctored" photographs from their book Historic Hopi Ceramics to make them appear as drawings.  Harvard refuses to acknowledge that they lost their copyright infringement claim against Mr. Elmore for these illustrations.  Harvard continues to imply that Mr. Elmore improperly used their photographs when in fact he merely depicted Native American forms and designs in the public domain. These Native American pottery forms and designs cannot be copyrighted by Harvard or anyone else.

In its press release, Harvard claims that it never tried to copyright Native American designs. Yet,  if the Native American forms and designs are removed from the photographs that Harvard claimed were infringed, the page would be blank.  The Peabody Museum Press frequently publishes illustrations of pottery created from photographs produced by other museums.  Here, they sued Mr. Elmore for a practice they engage in themselves.

According to the judge's ruling, photographs in Historic Hopi Ceramics are protected only from verbatim copying.  This ruling is also relevant to items on the the Peabody Museum's website.  The website does not offer the user any guidance as to which photographs on it are in the public domain and what uses of the public domain items depicted in these photographs are permissible.  As a rule, objects created before 1896 would be in the public domain.  Any photograph of old pottery on the Peabody Museum website is in the public domain if it is a mere snapshot showing the condition of the pottery. If there is minimal creative input to the photograph (stripping out the background, for instance) that photograph is only protected from verbatim copying.  This means that it is perfectly legal to create and to publish a drawing of an older ceramic in a photograph on the Peabody Museum website.   Here is a useful guide to expiration of copyright.

One of the motions before Judge Brack was a Petition For Attorney's Fees due Mr. Elmore.  The prevailing party in a copyright infringement suit is eligible, under the Copyright Act, to recover fees and costs associated with the defense.  The awarding of fees is at the judge's discretion, but should be based on the "objective reasonableness" of Harvard's case.  A Supreme Court decision issued while this case was ongoing further clarified this issue.  In Kirstaeng v John Wiley, the Court ruled that other factors may also be taken into account.  These factors include whether the infringement claim was frivolous, vexatious or over-aggressive.  The court can also seek to deter similar "copyright troll" litigation by awarding of attorney's fees to the prevailing party.  In this case, the judge chose not to rule on this motion prior to the settlement of the parties.

Harvard's press release omits the fact that Mr. Elmore agreed to withdraw the Motion To Dismiss Or In The Alternative For Sanctions.  It was duly withdrawn in order to reach a settlement.  This motion was before Judge Brack, but he chose not to make a ruling before the settlement conference;  it remains part of the public record.  This Motion aims to establish that  "The record is replete with evidence of Harvard's false, evasive, incomplete, and misleading representations in pleadings and within sworn testimony, and Mr. Elmore is in a continuous state of prejudice as a result." (P. 6). 

Harvard withheld thousands of pages of discovery documents from Mr. Elmore until after the Hearing that resulted in the temporary injunction on In Search of Nampeyo.  Information contained in these documents directly contradict statements made by Peabody Museum Press editor Joan O'Donnell and Director of Collections Kara Schneiderman while under oath.  Some of their statements were used by Judge Brack as the basis for granting the temporary injunction.  In particular, specific statements about the "irreparable harm" caused to Harvard by the publication of In Search of Nampeyo are refuted by evidence in the discovery documents, sworn affidavits, and later depositions of editor Joan O'Donnell and Director of Collections Kara Schneiderman. 

The rulings against Mr. Elmore, issued the day before the settlement conference, were originally sealed.  Part of the settlement is that these rulings be unsealed, and they are now public records. Harvard's press release statement that  "The Federal Court analyzed Elmore's allegations at length and concluded they were false..." is open to question.  This statement is refuted by the fact that Harvard lost its copyright claim  and the fact that Mr. Elmore is now able to sell his book.  Harvard filed suit in the case to enforce its alleged copyrights and to prohibit the sale of In Search of Nampeyo.  The actual outcomes of this case was contrary to their expectations.

Harvard's unwavering demand during the 20+ months of litigation in this suit was that every unsold copy of In Search of Nampeyo be destroyed.  The good news is that THE INJUNCTION HAS BEEN LIFTED.  In Search of Nampeyo: The Early Years 1875 - 1892 IS NOW FOR SALE AGAIN.  This beautiful book has won four national awards and represents a significant advance in knowledge of the  early work of the important Hopi/Tewa potter Nampeyo.   Purchase a copy.

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

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