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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