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 Change.org.  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 collections...in 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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When a Legal Document is Meant To Cause Harm: Fraud, Deceit, and Bad Faith

Below is the Formal Notification letter that Mr. Elmore was hand delivered by Joan O'Donnell, editor at the Peabody Museum Press.  This letter has already been discussed from the point of view of New Mexico contract law in Shouldn't a Contract Mean What it Says; I now want to discuss it from the perspective of the legal doctrines of Good Faith and Fair Dealing and Fraud and Deceit.  New Mexico courts have held that every contract imposes a duty of good faith and fair dealing .  "The implied covenant...requires that neither party do anything that will injure the rights of the other to receive the benefits of their agreement" (Sanders v. FedEx).   Intentionally drafting a contract that misleads and harms the other party is a violation of this principle, often simply called Bad Faith.  The Formal Notification can also be viewed under a tort claim of Fraud and Deceit.

According to Legal Dictionary Fraud must be proved by showing that the defendant's actions involved five separate elements: (1) a false statement of a material fact, (2) knowledge on the part of the defendant that the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result....The relationship between the parties can make a difference in determining whether a statement is fraudulent.  A misleading statement is more likely to be fraudulent when one party has superior knowledge in a transaction, and knows that the other is relying on that knowledge, than when the two parties possess equal knowledge.  Deceit is similar and involves making a fraudulent statement where the defendant knowingly or recklessly makes a false representation intending that the plaintiff should act upon it where the plaintiff does act to his detriment.

The exact legal status of the Formal Notification letter is not something I need to determine here.  The book contract that Mr. Elmore signed with the Peabody Museum Press had no termination clause that specified what would happen if the book was not published by the Press.  Editor Joan O'Donnell wrote this letter and gave it to Mr. Elmore personally at Marisco's Restaurant in Santa Fe, New Mexico.  Mr. Elmore relied on the express language returning to him "all rights" in his manuscripts and the recommendation from the Board to publish elsewhere when he self-published In Search of Nampeyo: The Early Years: 1875 - 1892.   The letter contains no restrictions or reservations of rights by Harvard.  The criteria for finding against a defendant on one of these charges are strict and, of course, these are matters that must be decided in a court.  However, here I present some of the evidence learned from Discovery documents provided to Mr. Elmore so tardily by Harvard.  Whether we focus on Bad Faith or Fraud and Deceit the same evidence would be relevant.  

We start with the letterhead and first line of text, both of which announce the letter as from the Peabody Museum of Archaeology and Ethnology.  At the Injunction Hearing in December, 2015 Joan O'Donnell testified that the Press was a separate entity from the Museum, and that their contracts were separate   "....since I never signed an agreement with him about the photographs he took...I couldn't revert those rights to him" (p. 136).  Yet, she writes here on behalf of the Museum on Museum letterhead.  Mr. Elmore could not know if she was misrepresenting herself as an agent of the Museum and overstepping her authority.

Ms. O'Donnell wrote the letter as representing the decision of the Editorial Board and conveying the recommendations of that Board.  In fact, the Formal Notification letter was written by Ms. O"Donnell without any input from, or approval by, anyone on the Board and without asking for a legal opinion, though Ms. O'Donnell stated at the Injunction Hearing that the letter was subject to legal and Museum review (p. 115).   She misrepresents to Mr. Elmore that the Formal Notification is endorsed by the Museum and by the Editorial Board, when in fact it was not read or reviewed by anyone.

Documents reveal that the actual decision not to publish was made by Ms. O'Donnell in consultation with Reviewer #1 in December of 2012, before she received the other two reviews, and more than a year before the negative decision was conveyed to Mr. Elmore.  Reviewer #1 wrote to Joan O'Donnell in this email exchange from December 2012 "I think I sense your discomfort in finding the words with  which  to reject this, right?  Ms. O'Donnell answers "It's not that so much as needing to present strong and explicit arguments to my editorial board and the museum brass."   Reviewer #1 goes on to suggest language with which to reject the manuscript  "Unless I had solicited this manuscript, I would pass along people's comments to him, say that  it is not up to the standards of the institution, and encourage him to take it elsewhere."  The language in the Formal Notification letter mirrors the language decided on in this email exchange from 2012.

Far from helping Mr. Elmore to develop his manuscript as specified in the Letter of Agreement, Ms. O'Donnell seems to have spent the intervening time between December 2012 and January 2014 making sure the manuscript would be rejected by a Board that showed a lot of initial excitement and enthusiasm.  She asked Mr. Elmore to respond in writing to the three reviews he received in May, 2013 and to write a much expanded manuscript for a more scholarly series.  He did this and submitted the second manuscript in November of 2013.  The Peabody Museum Press never communicated with Mr. Elmore about his replies to the reviewers or any of the new material before delivering the Formal Notification.  This document represents the decision as that of the Board and four reviewers.  However, the final decision was not actually made at the Board meeting; that decision was made (officially, this time rather than behind the scenes) after that meeting.  As can be seen from this email exchange between O'Donnell and Peabody Museum Director Jeff Quilter, the two were tasked with another review of the manuscript.  Mr. Quilter chose to leave the decision entirely up to Ms. O'Donnell.  Thus, the last paragraph of the Formal Notification stating  "I have to add, personally, that we tried very hard to make this project work..." is completely at odds with the record of events revealed in the Discovery documents.
  

The Board did hope that the book would be published elsewhere and, as documented in Mr. Elmore's Response to Harvard's Motion for Summary Judgement (p. 14) the Board recommended that the Museum be liberal in allowing Mr. Elmore to use his own photographs so that the book could be published, as they rightly recognized that the book would be useless without the photography.  The Formal Notification conveys the Board's recommendation to publish, but fails to mention any other procedures or restrictions, though these were known by Peabody Museum staff who sat on the Board, and known to Ms. O'Donnell before the book went to print.  Ms O'Donnell testified at the Injunction Hearing (p. 114) about learning of Mr. Elmore's intention to publish his book  "...since it was a pre-publication sale, I was very hopeful that it hadn't gone to press and that something could be worked out before it went to press and we would never have an issue."  This is the same person who deliberately removed a reference to the policies, that Mr. Elmore is now being sued for violating, from a draft letter before sending it to him, as can be seen in these emails between O'Donnell and Museum Staff.  

Ms. O'Donnell's statement that she would support publication of Mr. Elmore's work in American Indian Art Magazine is VERY peculiar.  As documented in the blog entry Attribution of Unsigned Pueblo Pottery, American Indian Art Magazine was the journal that published Mr. Schramm's article "Righting the Record."  It is apparent that Mr. Schramm had access to Mr. Elmore's work when it was still under review and used that access to preemptively attack Mr. Elmore's argument.   As documented in the judge's final rulings, this article was used to discredit Mr. Elmore's work with the Editorial Board as the minutes of the meeting include Mr. Schramm's "early rebuttal" as one of the reasons to reject his manuscript.  All the people who were at the board meeting who were deposed on this subject claimed they could not remember who had given this as a reason for rejection and none seemed knowledgeable about the actual content of this article.   Given these circumstances and the added fact that one of the people Mr. Schramm thanked in his acknowledgements also sat on the board of American Indian Art Magazine, I think it most improbable that American Indian Art Magazine would have published Mr. Elmore's work and Ms. O'Donnell was well aware of that fact.

The controversy surrounding the offer of "10 -15 existing high-quality Peabody photographs to use in such a publication" has been a central focus of this case.  Harvard has made many different representations of the meaning of this phrase ranging from an assertion that it "underlined" that Mr. Elmore could not use his own photographs, to "not saying" what it means.  Mr. Elmore read it as an offer of existing photographs if he would like to use them, which is what it says.  None of the existing Peabody Museum photographs would have been helpful to Mr. Elmore in making his argument, as that required the careful arrangement of groups of pottery in the Keam collection in order to show the connections among them and establish the artistic styles of Nampeyo.  Ms. O'Donnell was well aware that this offer of photographs had little to no value to Mr. Elmore, as she had testified at the Injunction Hearing that Mr. Elmore's book would have very little value without his photographs. 

We can use the Formal Notification together with information gleaned from Discovery to ask whether there is evidence of an intent to deceive and harm Mr. Elmore, using the criteria for Fraud enumerated above. (1)  The return of "all rights" to his manuscripts and the statement that the letter was from the Peabody Museum and not merely from its Press are either factually false or reckless statements.  (2) Ms. O'Donnell's Injunction Hearing testimony cited above shows that she was aware of these inaccuracies.  (3) The clearest evidence that Ms. O'Donnell intended to deceive Mr. Elmore comes from her removal from an email of the very policy she now tasks him with violating.  (4) Mr. Elmore relied on this letter, which says clearly that he has both the right and a recommendation from the Board to publish his manuscript elsewhere, and lastly (5) Mr. Elmore is now suffering the harm of an onerous lawsuit for doing exactly as Ms. O'Donnell's letter recommended. 

Mr. Elmore is not an academic and is a first time book author.  He relied on the Peabody Museum and its Press because of the high reputation they have in the academic world and their long history of publishing books on important Museum collections.  Thus, Harvard "has superior knowledge in [this] transaction, and knows that the other is relying on that knowledge".  Despite Mr. Elmore's repeated requests that procedures, decisions, and other protocols be communicated to him, it was rare for him to be given information that he needed to produce a manuscript acceptable to Harvard or to learn critical facts that might have prevented this lawsuit.  This email from Joan O'Donnell indicates that she was well aware that Mr. Elmore, as one of the "people in the real world", lacked information about the procedures and processes in academia.  In another email she concludes "mea culpa, mea culpa, mea maxima culpa" revealing that she knows very well it is her job to communicate information to Mr. Elmore and that she had been exceptionally tardy in doing so, only responding after repeated inquiries.  Harvard has spent a lot of time informing the courts about the details of their private processes, but would have done much better if they had given Mr. Elmore such information in a timely manner.

Harvard has cancelled a court ordered settlement conference for the third time.  Harvard is not willing to talk and insists that its view of the matter must prevail absolutely.  Harvard has been steadfast in its demand that every unsold copy of In Search of Nampeyo be destroyed. 


 This is the ninth 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, the stealing of intellectual property, and abuse of the legal system.

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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 book....is 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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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 www.peabody.harvard.edu (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 "...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.

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Confidentiality and Peer Review--A Legal and Ethical Inquiry

Confidentiality has become a central issue in the case of Harvard v. Elmore over Mr. Elmore's book In Search of Nampeyo.  It appears that the confidentiality of Mr. Elmore's manuscript was breached by both an editor and a reviewer.  However, even though Harvard began the suit, Harvard is claiming the confidentiality of the peer review and editorial processes as reasons to deny Mr. Elmore evidence that he needs for his own defense.  This essay will examine some of the legal and ethical issues around confidentiality and peer review.

Academic authors typically go through a peer review process when they submit a manuscript.  The most common form of this process involves an editor sending the manuscript to experts in the field who read it, write comments, and recommend whether the press should publish it.  Commonly, the reviewers are anonymous.  The anonymous peer review system is defended because of the need for complete honesty on the part of reviewers.  It is assumed that reviewers who have harsh things to say about a manuscript would not be able to say these things if their names were revealed.  The system is also defended on the grounds that it protects younger scholars from retaliation by more famous and established scholars.

On the other side are arguments that anonymous reviews allow for people with conflicts of interest to suppress a work that really does meet high academic standards.  Authors also worry that a work will be suppressed by a reviewer who then turns around and steals the research or passes it on to a competitor.   Anonymous peer reviewers for grant proposals are suspect on similar grounds.  Researchers may agree to review grant proposals in order to steal exciting new ideas from young researchers.  Anonymity certainly facilitates these kinds of activities, but it is rarely possible to establish the truth of such allegations as the reviewers' identities are protected by academic custom and vigorously defended by institutions. 

 Nearly all academics have stories of what they perceive as the subversion of the peer review process. There are many Internet sites and blogs where horror stories of reviews, reviewers, and editorial decisions are recounted.  There is even a Facebook page Reviewer 2 Must Be Stopped:

You know Reviewer 2:

The one who wrote "this has already been done" to reject your paper, without any references to the literature...

The one who sat on your paper for 6 months while they frantically ran their competing experiment...

The one who goes on an on about how the method you used sucks (except s/he misread the paper and you didn't use that method at all)...

The one who says "this could all be explained by attention" when you compare anything to anything (this is called attention-tology, and it works in getting your paper rejected even if attention has to be attributed to sub-atomic particle, an aubergine, or the GDP of a developing country)

Oh yes you know Reviewer 2...

Note: Reviewer 2 is not a number, it's a state of mind.  

Occasionally, conflicts get into the courts, but court rulings about the circumstances under which institutions must reveal documents kept as confidential are not predictable or consistent.  Peer review is used by publishers, by tenure and reappointment committees, and in health care environments to review how particular cases were handled, to name some common circumstances.  Naturally, people involved in criminal and unethical activities will be vociferous about the sanctity of concealing reviewers' names or the internal fact finding processes.  But this is not the only scenario under which institutions seek to conceal this information.   Let's examine some circumstances in which courts have  decided that this confidentiality can be overridden and that documents or reviewers' names must be revealed. 

Most cases that go to court come from the health care field.  These AMA case summaries show the many conflicts hospitals face when their own peer review process, to determine what went wrong with a case, are subject to subpoenas by angry families seeking to know the same information to recover damages.  The American Medical Association at all times upholds the principle that peer review should be confidential.  The courts don't always agree.  Each side has a legitimate position here.  On the one hand, hospitals try to determine what went wrong in a particular case to guard against a repeat of an avoidable problem.  However, if their own internal investigation can also become public in a wrongful death or other malpractice case, hospitals will be reluctant to even conduct these investigations.

In academia, peer review is used for reappointment and tenure decisions.  In Univ. of Pa. v. EEOC::493 U.S. 182 (1990), the Supreme Court heard the case of an Asian-American woman denied tenure who sought the confidential records of her own and others' tenure decisions.  She alleged that her negative decision was based on racial and sexual discrimination, and sought to prove that four men granted tenure were not more qualified than she.  The court agreed that these records were necessary for her to make her case.  The court balanced the university's right to make its own academic decision in a confidential way against the right of people not to be discriminated against in employment.  The court wrote: "The costs that ensue from disclosure, however, constitute only one side of the balance. As Congress has recognized, the costs associated with racial and sexual discrimination in institutions of higher learning are very substantial.  Few would deny that ferreting out this kind of invidious discrimination is a great if not compelling governmental interest."  

The justices also weighed in on the proclaimed necessity of confidentiality in peer review:  "In addition, the claimed injury to academic freedom is speculative, since confidentiality is not the norm in all peer review systems....Finally, we are not so ready as petitioner seems to be to assume the worst about those in the academic community.  Although it is possible that some evaluators may become less candid as the possibility of disclosure increases, others may simply ground their evaluations in specific examples."

Many journal editors agree with this assessment.  Open Review is becoming more common, a process in which the paper and the reviews, signed by the reviewers, are all posted online so readers can evaluate the quality of both the paper and reviews.  One reason for this is to increase the transparency of the whole process, thereby increasing the confidence of the scholarly community in the integrity of the system.  A second reason, new to me, is a movement toward counting peer reviews as publications in their own right.  In this way, scholars, especially more junior scholars, can turn the time and effort they expend on peer review into a publication that can be listed on their resumes.  A conversation has sprung up around the question of Who "owns" peer reviews?.

In the paper US Legal Principles and Confidentiality of the Peer Review Process, Parrish and Bruns enumerate some of the principles used by the courts to make these decisions:  "Successful motions to quash have been premised on the journalist's privilege and the scholar's privilege, as well as the First Amendment  ....Inherent in every example of a privilege that shields documents or individuals from requests for discovery is a tension between society's need for relevant evidence and the need to protect a nonlitigant's confidential information from unwarranted disclosure....the court will give more weight to interests that have a distinctly social value than to purely private interests."  Journals cite editorial privilege, peer review privilege, and the self-evaluative privilege....however, courts also recognize "[The author's] interests cannot be protected unless he is able to retain control of the article until it is complete; and where the purpose of the article is publication, complete must be defined as published.  Only in this way is [the author] able to preserve the integrity of his work, protect his intellectual property and safeguard his reputation and credibility...[T]he product of [the author's] efforts is fairly considered confidential."

In the case of Steve Elmore's manuscript for the book that became In Search of Nampeyo: The Early Years, 1875 - 1892, one reviewer recommended rejection, one acceptance with revision, and one acceptance as is.  The reviews and Mr. Elmore's replies to them are now public court records.  Harvard eventually rejected the book and returned all rights to Mr. Elmore, recommending that he publish it elsewhere as described in Shouldn't A Contract Mean What It Says?  Mr. Elmore followed this recommendation and self-published the book.  The book won four national awards and was well received.  Harvard sued for copyright infringement, breach of contract, and false designation of origin.  The court ruled against Harvard's copyright claims, but the rest of the charges are ongoing.  Harvard has used the confidentiality argument to prevent Mr. Elmore from learning the name of the first reviewer or gaining access to documents from a museum professional who, documents suggest, was involved in a breach of confidentiality of Mr. Elmore's manuscript while it was under review.  The court quashed a subpoena for documents from this museum professional, whose name is on the masthead of the journal and who is thanked in the acknowledgements, of a paper, entitled "Righting the Record" American Indian Art Magazine (pp. 68 - 81) meant to debunk Mr. Elmore's thesis before his book was even published. 

As discussed in Attribution of Unsigned Pueblo Pottery, "The number and specificity of the points about which Mr Schramm takes issue with Mr. Elmore is disturbing, as the manuscript was still under review at this point and the contents should have been confidential."  A second breach of confidentiality also occurred. Discovery documents show that the editor and a research associate at the Peabody Museum were discussing publishing Mr. Elmore's work without his knowledge or involvement.  This is detailed in A Researcher's Worst Nightmare at Harvard University.  The book is now under a temporary injunction until the case is settled, at which point it will either be available again for sale or all remaining copies will be ordered to be destroyed.  

The judge has allowed an email exchange between the first reviewer and the editor to be severely redacted.  Consider these statements from the reviewer that were not redacted: 

"I AM ANONYMOUS"

"Again, I never said any of the following...."

"Those very points would be used as selling points and because he is a dealer, you would be validating them and enabling him"

"You cannot risk making the Peabody Museum a laughingstock"

"Keep in mind that this is not the first time he has approached a publisher with this subject (I am not supposed to know that....)"

"With all the things I had heard about this MS, my E.S.P. was what made me call you"

This reviewer is intent on keeping his name from being associated with his own statements.   It is one thing to write an anonymous negative review as part of your job as reviewer; it is another to use that anonymity to reveal confidential information, convey hearsay information, and libel an author in order to get a manuscript rejected.  It is likely that this reviewer is the very museum professional who seems to have breached the confidentiality of Mr. Elmore's manuscript and worked with another author to publish an article hostile to Mr. Elmore's thesis.  Should this reviewer's name be protected by the court and should correspondence between this reviewer and others who appear to be involved in efforts to assure that the manuscript be rejected, activities that go far beyond the mere writing of a negative review, also be protected from discovery efforts by Mr. Elmore?

Here we have a clear conflict between two legitimate interests recognized by the court in the excerpts cited above.  The peer review, editorial, and self-evaluative privileges which protect the anonymity of a reviewer and any board deliberations are at odds with the author's privilege to have his work remain confidential until publication.   Harvard has sued Mr. Elmore, and the courts are blocking evidence necessary for Mr. Elmore to find out the facts and defend himself adequately. Thus far, the court has sided with Harvard and thwarted Mr. Elmore's requests to gain further evidence about breaches of confidentiality. 

Also implicated here is the editor Joan O'Donnell.  Less has been written on this topic, but Who Rules the Ruler? On The Misconduct of Journal Editors is a good place to start.  The authors note that the "social and economic power unbalance between authors and publishers suggests the importance of alternative solutions before or instead of bringing a lawsuit to court."  They favor "effective regulatory bodies so as to achieve and maintain a culture of research integrity..."  And finally, the first issue of a new journal Research Integrity and Peer Review  appeared last month.  The aim of this journal is to fill in gaps in our knowledge about the effectiveness of peer review and the various decision making processes with actual research on these topics.  

 This is the sixth 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, Harvard's claim of "irreparable harm", and abuse of the legal system.

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