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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