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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Shouldn't a Contract Mean What it Says? I: The Return of Rights Letter

Note:  This is the first entry of a two part analysis of the contracts at issue in Harvard vs. Steve Elmore and the book In Search of Nampeyo: The Early Years, 1875 - 1892.

In this essay I will look at the controversy around the return of rights or Formal Notification letter that was delivered to Mr. Elmore in January, 2014 when the Peabody Museum Press rejected the manuscript of In Search of Nampeyo.  Mr. Elmore read this letter, did his due diligence by checking its meaning with two attorneys, and then self-published his book.   Here is the letter: 

As you can see, the letter returns to Mr. Elmore “all rights in the manuscript…including all versions of the manuscript submitted to the Peabody Museum Press” and that “The Board recommends that you find a magazine or trade publisher…to publish the work.”  Orally and in later emails, Ms. O’Donnell recommended two university presses and a particular trade publisher as alternative places to publish the manuscript.  There are no clauses in this document reserving rights for the Peabody Museum Press or for the Peabody Museum.   There are no constraints or special conditions put on Mr. Elmore’s ability to publish.  While particular venues for publication are suggested, he was not required to use any of these venues.  

This Formal Notification is a legal document written on behalf of the whole Editorial Advisory Board, which included Jeff Quilter, the Peabody Museum director, Steven LeBlanc, the Director of Collections, and Project Manager Donna Dickerson, among others.  Mr. Elmore read the letter as representing the position the Board took with regard to his manuscript.

The original book contract, called the “Letter of Agreement”, defines “manuscript” as “electronic and hard copy; including front matter, text, bibliographic references, copies of illustrations, and figure captions.”  It also states that Mr. Elmore’s book was a “work for hire”.  The United States Copyright Act says all rights to a work made for hire vest originally in the author of the work, in this case Harvard. Because all rights, including publication rights and rights of copyright, were initially vested with Harvard when Mr. Elmore was working for Harvard under the Letter of Agreement, these same rights were returned to Mr. Elmore in the Formal Notification letter.

However, In their suit against him, Harvard claims that “manuscript” only refers to the text, and that Mr. Elmore had not been given permission to publish the photographs he took while doing research in the Peabody Museum collections.  I will examine the complex array of issues around the photographs in my next blog entry.  For the sake of understanding how the Formal Notification letter should be interpreted under New Mexico law, we need to turn for guidance to New Mexico case law and some Uniform Jury Instructions. 

Using New Mexico case law we learn that language in a contract, if not specifically defined, is taken as having its customary or “dictionary” meaning and a term must be interpreted “in its usual, ordinary, and popular sense”, “…clear and unambiguous clauses must be accepted as the expression of the intent of the parties, and enforced by the courts as written.”….“Resort will not be made to a strained construction for the purpose of creating an ambiguity when no ambiguity in fact exists” (Battishill v Farmer's Alliance).   In the Formal Notification letter, “all rights” would mean exactly that. Harvard attempts to read into this contract a meaning different from the clear words on the page and to insist that this contract be understood according to other facts or principles not stated; according to New Mexico law, this should not be successful. Any uncertainties as to meaning “must be construed most strongly against that party which drafted the contract” (Schaeffer v.Kelton).  Mr. Elmore should not be required to guess at any secret meanings or intentions.  He is required to read and follow the contract as delivered to him, especially as he had no part in drafting it. 

Harvard offers a strained reading of this letter that requires many additional assumptions. For instance, Harvard claims that the “10 - 15 high quality existing Peabody photographs” were meant to substitute for over 100 ceramics, carefully arranged in groups, that Mr. Elmore used to demonstrate his thesis.  Harvard insists that this offer of free photographs has the obvious meaning, without their stating it explicitly, of a prohibition on Mr. Elmore using his own photographs.  Ms. O’Donnell admitted in court testimony at the injunction hearing (p. 124) that there would be “very little value” to Mr. Elmore's work without his own photographs, yet Harvard insists he should have understood the letter in this nonsensical manner.

When questioned in her deposition (transcript in preparation) about the offer of photographs, Ms O’Donnell, the author of the letter, seemed to have no idea what she meant by it, she "was not saying one way or the other” whether the offered photographs were meant as substitutions or in addition to Mr. Elmore’s photographs.  Suddenly, after litigating this case for a year, Harvard offered a new interpretation of this phrase in their latest motion for summary judgement on the Permission to Photograph Collections contract.  Now, these photographs are starter photographs, and not the substitutes for all of Mr. Elmore’s Keam collection photography that Harvard had insisted on all along.   This serves to demonstrate the very poor quality of this contract.  The editor does not seem to know what it means and Harvard’s attorney feels free to change his own interpretation at will to fit present circumstances.  Mr. Elmore understands this phrase to mean only what it says; it is an offer of 10 - 15 existing photographs from the Peabody Museum that he can use in his book free of charge if he wants to.  That is what the contract says.

In addition to controversy about the meaning of the Formal Notification letter, there is also uncertainty about its status.  The judge ruled that the Formal Notification, on which Mr. Elmore relied when he published his book, was not part of the contract because Harvard “could have written something different” in that letter.  “The contract does not require Harvard to return the rights if the manuscript was not approved for publication...Consequently, Harvard’s alleged failure to honor its subsequent decision to return rights to Mr. Elmore never denied Mr. Elmore of his “reasonable expectations arising from the Contract.” (Case 1:15-cv-00472-RB-KK  Document 137 Filed 04/22/16  P. 10).   This ruling confuses me; I think it means that since the original Letter of Agreement did not have a termination clause that specified exactly what would happen with the manuscript if the press decided to reject it, the Formal Notification letter is not to be strictly construed as part of the Letter of Agreement. 

However, Harvard did choose to write and deliver exactly the letter that Mr. Elmore relied on when he made his decision to publish the manuscript.   Mr. Elmore would naturally consider the definitions of “work for hire” and “manuscript” from the Letter of Agreement and read and follow the policies in the Permission to Photograph Collections form (more on that next time) when making his choices.  If we look at Luther Wilson’s expert testimony (p. 14 - 20), he includes a well written, professional Publishing Agreement which has, for instance, specific arbitration and termination clauses.  This would have been preferable to the vaguely worded Letter of Agreement that Mr. Elmore and Ms. O’Donnell signed.

Rather than being a part of the contract in a strict sense, the Formal Notification letter would now be considered an “accord and satisfaction” under New Mexico law.  According to the Uniform Jury Instructions, this apples “to all transactions where discharge of a contract duty occurs through acceptance of something in substitution”  (UJI 13-836).  In this case, Mr. Elmore accepted the return of rights to his manuscript and the ability to publish it elsewhere in lieu of the Peabody Museum Press publishing his book.  Harvard offered this, and Mr. Elmore accepted it.   

The fact that Harvard is now suing Mr. Elmore for doing exactly as they recommended can be viewed under the doctrine of “promissory estoppel”.  The elements of promissory estoppel are “(1) An actual promise must have been made which in fact induced the promisee’s action or forbearance; (2) The promisee’s reliance on the promise must have been reasonable; (3) The promisee’s action or forbearance must have amounted to a substantial change in position; (4) The promisee’s action or forbearance must have actually been foreseen or reasonably foreseeable to the promisor when making the promise; and (5) enforcement of the promise is required to prevent injustice”  (UJI-13-815).   

In this case, the return of rights and recommendation to publish elsewhere were clear and Mr. Elmore relied on the promise and invested the time and money to ready the book for publication and to print it.  Harvard, who recommended this course of action to him, could have reasonably foreseen that this would occur.  A manifest injustice would occur should Harvard prevail in its claims against Mr. Elmore in this instance.  Harvard’s own interpretation of the Formal Notification letter amounts to denying Mr. Elmore the opportunity to publish the fruits of his 25 years of research together with the evidence he had created in the form of pottery arrangements. The Peabody Museum enjoys the many benefits of the work Mr. Elmore did for them, while under contract to produce a book, in terms of increase in the prestige and value of their Keam collection and use of his attributions of pottery to Nampeyo.  

The Formal Notification letter was signed by editor Joan O’Donnell, but written on behalf of the entire Editorial Advisory Board.  Mr. Elmore naturally thought that the letter included the input of others on the board who represented the interests of the Peabody Museum (director Jeff Quilter and director of collections Steven LeBlanc) and the press (production manager Donna Dickerson).  Though Joan O’Donnell stated in her testimony at the injunction hearing that she could have written whatever she wanted in the letter “subject to…review by attorneys or by museum policies” (p. 115), there is no evidence at all that anyone else helped draft the letter or reviewed it before it was sent.  It seems that everyone involved, including Harvard’s own attorneys, simply accepted, without question or any wider inquiry, Ms O’Donnell’s personal account of and interpretation of this letter.  As was also the case with their copyright infringement charges, Harvard sues first and asks questions later.

 This is the fifth 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, legal aspects of peer reviewer anonymity, and abuse of the legal system.

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