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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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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HARVARD LOSES COPYRIGHT INFRINGEMENT CASE AGAINST STEVE ELMORE

Note:  This case is still ongoing.  Harvard's copyright infringement charges were the subject of motions for partial summary judgements, and the judge ruled against them as discussed in detail below.  However, Harvard's breach of contract claim against Mr. Elmore is still open and will be discussed in the next two blog entries.

The first entry in the Free Nampeyo blog discussed Harvard's copyright infringement claims against Steve Elmore's book In Search of Nampeyo: The Early Years 1875 - 1892.   You can read Why is Harvard Claiming Copyright to Native American Designs? for more background.

The subject of Harvard's complaint was whether color illustrations of designs on old Hopi pottery held in the Keam collection at Harvard's Peabody Museum violated the copyright to their black and white photographs of this pottery.  Mr. Elmore filed a motion for partial summary judgement against this claim, asking the judge to consider the law and the facts and make a ruling.  Harvard also filed a cross-motion for partial summary judgement concerning a photograph of a Kayenta or Tusayan jar that appeared on its website and also in Mr. Elmore's book.  Both claims were decided by Judge Robert C. Brack of the United States District Court in Las Cruces, New Mexico.  Judge Brack's ruling "Grants Defendant's Motion for Partial Summary Judgement (Doc.92); and Denies Plaintiff's Cross-Motion for Partial Summary Judgement that Elmore is liable for Copyright Infringement (Doc. 109). " His whole opinion is linked at the end of this post.

Determining whether copyright infringement has occurred can be a complex matter.  The decision depends on two basic factors.  The first is whether the underlying work is copyrightable at all and, if so, which elements of the work are subject to copyright.  The second is whether the work accused of infringing on the protected aspects of the underlying work in fact does infringe. The present Opinion is a good example of sorting out the fine points of such a case, thus the rest of this essay will look at the details of Judge Brack's decision.  

Below is the photograph of the Kayenta or Tusayan jar that was the subject of Harvard's cross-motion for partial summary judgement.  Judge Brack's Opinion is that this is not a copyrightable photograph.

Quoting from the Compendium of U. S. Copyright Practices, third edition "as with all copyrighted works, a photograph must have a sufficient amount of creative expression to be eligible for registration".  A photograph should not be registered "if it is clear that the photographer merely used the camera to copy the source work without adding any creative expression to the photo".   Judge Brack argues that this photograph is just such a case.  It was not taken as a study in photography or crafted by the photographer with carefully chosen lighting and background, but rather was a "conservation image" taken as part of a "condition assessment" while the jar rested on a surface with a bunch of other stuff visible behind it.

The second part of the Opinion is more complex.  It involves 41 illustrations created from designs visible in the black and white photographs of pottery that were published in the book Historic Hopi Ceramics (HHC).  Below is a comparison of two of the black and white photographs and the illustrations created from them.

First Judge Brack determined that, unlike the photograph of the Tusayan or Kayenta jar discussed above that is not copyrightable, the black and white photographs in HHC show "a minimal degree of creativity--if only a humble spark".  Decisions were made to photograph each ceramic in the same way and to strip the backgrounds from each of the individual photographs "to emphasize the impact of the collection as a whole rather than the intricacies of each individual piece."  However, just because a photograph is copyrightable does not mean that "every element of the work is protected....the less original the plaintiff's work, the more the defendant must copy to infringe on the plaintiff's copyright."

Importantly. Judge Brack finds that the Native American designs on the pottery and the form of the pottery are not copyrightable elements of Harvard's photographs: "Here the copyright of Historic Hopi Ceramics does not protect against copying the most prominent features in the works: the intricate pottery designs and forms achieved by a Hopi potter, perhaps Nampeyo." (emphasis added). 

Judge Brack notes that the protection of the HHC photographs is "incredibly limited" and only a verbatim copy would violate a copyright with such a small amount of creative input from the photographer.  He observes that Mr. Elmore's illustrations highlight the designs, which are non-copyrightable elements, and switch the emphasis from the condition of the pots as a whole collection to these design elements.  The illustrations use line art and are in color.  They clean up and bring out elements of the designs, while eliminating aspects of the pottery itself, such as fire clouds.  Judge Brack writes: "Considering only the  protected elements in the Historic Hopi Ceramics photographs and Mr. Elmore's images, reasonable minds could not find substantial similarity between the two." 

He also notes that Mr. Elmore picked individual ceramics to use in his illustrations and did his own arrangements of them, in order to emphasize comparison of the designs.  Mr. Elmore's use of these ceramics to establish a novel thesis would give his work protection under the fair use doctrine.

I have to wonder why Harvard brought this copyright infringement suit against Mr. Elmore in the first place.  His use of illustrations of designs seen in photographs is quite common in ethnology and archaeology publications and is a long standing practice.  Illustrations done from photographs of pottery in a museum are used, for instance, in Symbols in Clay, a 2010 publication from the Peabody Museum Press.  Why is The Peabody Museum Press at Harvard suing Mr. Elmore for doing the exact same thing that they did in a recent publication?  Why didn't the editor, Joan O'Donnell, consider this before pursuing this charge?  Why didn't the Peabody Museum Director, Jeff Quilter, point out this obvious fact before a lawsuit was filed?  Why didn't Harvard's legal counsel do even the most cursory inquiry about the use of illustrations of pottery designs in publications before filing this suit?

Perhaps some sense of this can be made by looking to Harvard's expert witness report. On page 5 of his disclosure, Thomas Chavez, retired director of the Palace of the Governors in Santa Fe, New Mexico, writes that museums often charge fees for the use of their copyrighted photographs, and indeed, the Peabody Museum at Harvard charges such fees and they constitute one of their revenue streams.  It is possible that the Peabody Museum was eager to extend the reach of its copyrights, thus enlarging the number of photographs that could generate income for the museum.  It is also possible that this copyright infringement charge was frivolous and/or vindictive in its motives.  If this is true, then neither the facts of the case nor the law were important elements in the decision to bring the charges.

Mr. Elmore is grateful that this ruling found him innocent of copyright violation charges and that the Native American designs he used in his book are still freely available to all, but especially to the Hopi/Tewa potters who consider them such an important part of their cultural heritage.

Mr. Elmore would like to thank his attorneys, Christopher DeLara and Jonathan Garcia of the Guebert Bruckner law firm in Albuquerque, New Mexico for their hard work, clear thinking, and fine writing in pleading this matter before the court.

Opinion and Order MSJ


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

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Attribution of Unsigned Pueblo Pottery: How To Do It; How Not To Do It

The main thesis of Steve Elmore’s book In Search of Nampeyo: The Early Years 1875-1892  is that many of the modernware pieces in the Keam collection now residing in the basement of the old cyclotron building at Harvard University is the work of the famous Hopi potter Nampeyo.  Previous to Mr. Elmore’s research, the pottery was believed to be a random assemblage of pottery from perhaps hundreds of different makers.   Nampeyo did not sign her pottery, so how can we know with any certainty that certain pots are the work of her hand and how can these be reliably distinguished from pottery by other makers?

There is a long history of attribution of unsigned art work.  Pioneered by Giovanni Morelli, and practiced extensively with European paintings and Greek vases, it involves the close observation of patterns in the production of details like ears, hands, or other objects.  Individual artists will do these motifs differently and in an idiosyncratic manner that connoisseurs learn to recognize.

In identifying Pueblo pottery, details of line work, glyphs, molding, polishing, and pattern are used to distinguish the work of different potters.  It is not just Nampeyo pottery that is identified using this technique.  Older unsigned pottery from Zuni, Acoma, San Ildefonso, Santa Clara, and Zia pueblos are also examined using this method.   This technique of connoisseurship is combined with other information, if available, to form a judgement about the creator of a piece.  Perhaps there is a well established provenance from the original buyer, involving a photo or a note.  There may be a photo of the potter holding the pot.  A potter may be famous for producing a certain design during a certain period and there may be known similar examples in museums or pictured in publications that can help establish the identity of the potter with increased confidence.

In the case of the Keam collection at the Peabody Museum, we know that the collection was purchased from the trader Thomas Keam in 1892, so that gives an upper limit to the possible date any of the pottery was made.  Mr. Elmore studied the historical record of travelers who visited Hopi during the period from 1875, when the trading post was opened, to 1892, when the collection was purchased.  He found that Nampeyo’s name was the only one mentioned by these travelers when they talked about pottery makers or the purchase of pottery.  In addition, Nampeyo was the sister of Tom Polacca, who greeted, translated for, and entertained most of the visitors to Hopi,  Thus she was well placed to interact with visitors from the outside world.  Of course, there were other potters, and some of their pieces are in the Keam collection, but there is no large consistent body of work attributable to another potter or potter family at Hopi during these years.  Other potters were making pieces for home use, ceremonies, or trade, not specifically for the new market, pioneered by Keam, Fred Harvey, and others, that the arrival of Anglo-Americans and Europeans stimulated.

Aside from the evidence of the pottery itself  and travelers’ accounts, the Hopi oral history collected by Nequatewa and published in Plateau magazine in 1942 is a valuable source of information.  Mr. Elmore has himself worked as an Indian Trader for many years, thus he has extensive experience buying and selling pottery from living Hopi potters and he is well aware that no trader simply goes around buying pottery at random from all potters.  Traders work with just a few potters intensively, while occasionally buying pieces from others. In addition, master potter and Nampeyo descendant Rachel Sahmie accompanied Steve and me to study the Keam collection, and her insights from the point of view of a professional potter who had learned from her mother and gone through the long path from beginner to accomplished artist in her own right, were an invaluable contribution to the book.

One aspect of the pottery in the Keam collection that struck us right away are the many batches with very similar designs and forms.  These pieces do not show signs of wear that pieces made for home use invariably have.  This suggests that Keam was buying for the tourist market.  The attributions to Nampeyo are strengthened by the fact that many of the motifs seen on these groups of pottery in the Keam collection are also found consistently on later pottery that is known to be by Nampeyo, establishing that these designs are the designs belonging to her and her family.   Photos of a great many groups of pots from the Keam collection with these sorts of similarities, but combined slightly differently, are used in the book to support this thesis.  The book is under an injunction, so it is not possible to show Mr. Elmore’s photographs from the Keam collection here, but this group of bowls from Mr. Elmore’s own collection shows the repetition of pattern over time that is important to his work.

These Nampeyo bowls, with similar swirl designs, date from the Keam period (1875-1892) to around 1920.  They are all riffs on a design from an ancient Sikyatki bowl in the Keam collection.  The Keam period pieces in the above photo are recognized by their crackled white slip, called a Polacca slip (bottom left, and second row from top, second from right).  Slightly later pieces have a white slip (first row, last bowl and bottom row, middle bowl).  Red slipped bowls were a little later (late 1890s to around 1910), after which Nampeyo specialized in the yellowware that is still most popular today (starting around 1900; the bottom right bowl is an example).  These different periods overlap.

In their pleadings for this lawsuit, Harvard claims that they find Steve’s thesis “unconvincing”, yet discovery documents reveal otherwise.  Prior to Steve’s work at the Keam collection, there were no pieces attributed to Nampeyo.  Now, despite their public statements to the contrary, we see that identifying Nampeyos in the Keam collection has become quite common.  As can be seen in this link, the collections manager, two directors of collections, a research associate, and others are all Finding Nampeyos.

NAMPEYOS FOR SALE

There are about a dozen galleries selling old pueblo pottery in Santa Fe, New Mexico and another half dozen in Albuquerque.  During the summer there are antique shows, Indian Art shows, and Tribal Arts shows that bring in many more dealers in addition to a half dozen auctions at which old Pueblo pottery is sold.  Pottery sellers range from people selling at flea markets and estate sales to high end galleries on Canyon Road.  There are many people, both amateurs and professionals, looking for Pueblo pottery in Santa Fe and much interest in how to identify the pieces correctly as to Pueblo of origin and to specific artists, if possible.

Sellers of old Hopi pottery will usually label a piece they think is a Nampeyo in some way.  These identifications range from the rather generic “Probably a Nampeyo”, “Possibly a Nampeyo” , “attributed to Nampeyo”( perhaps with a date range attached), to a much more detailed account which mentions known design elements, aspects of the molding and firing of the ceramic, similar ceramics known to be by Nampeyo, and any notes about provenance that may help to tie the piece to Nampeyo.  The more of these elements that are present, the more definitive the identification can be, though it is rarely possible to be 100% sure.  Below is a portion of an attribution letter by Steve Elmore which will give a good idea of the kinds of information dealers, museums, and collectors find important to attribution.

"This bowl is attributed to Nampeyo for many reasons.  First, she worked in this particular colored red slip with grayish blue white outlining before and after 1900.  So the materials of this piece match other known examples of her work.  This bowl’s size and depth also match other pieces by her, (see Kramer, p. 179, figure 1). In particular, this one also has her characteristic double coiled rim.  The bowl’s form has her confident molding and her long polishing marks on the base.

Because the design is simply rendered without decoration along the inner or outer rim, this would indicate a date of around 1900 for the piece.  The bold confident lines are characteristic of Nampeyo’s hand….The symmetry of the pill shape is boldly offset with asymmetrical wings on each side, which is common for Nampeyo’s design palette…..Four other similar bowls to yours are depicted on page 82 of the Blair biography, (fig. 2.23).  These four bowls were collected between October 1903 and February 1904 by Professor Die Solberg of the University of Oslo.  These are black and white on red bowls, not yellowware, and clearly show large singular elements as their main design.  Blair attributes these designs to Sikyatki and prehistoric Four Mile area potters, “with the added Nampeyo touch.”  Another example of the bold single design is shown in the Color Portfolio section of Blair’s book, page IV, figure I."

Many other examples of attribution letters can be found by looking, for instance, at auction web sites such as this one from the Bonhams auction house:  Nampeyos at Bonhams
The methods mentioned here are the ones commonly used to determine the pueblo of origin, date of manufacture, and artist as best we can.  Many collectors are extremely knowledgeable, having read the literature, visited museums, studied auction results, and handled hundreds or even thousands of pieces of pottery over the years.   Less experienced collectors do rely on others to identify pieces correctly.

People worry about the trustworthiness of attributions, as is only fair.  It is rare to have 100% confidence for any unsigned piece, but we can often have some degree of confidence and that degree of confidence also contributes to the prices asked and paid.  At times, we can also be rather confident that a piece is NOT by Nampeyo.  If the piece is, for instance, made of commercial clay, painted with acrylic paints, or fired in a commercial kiln, it is not a Nampeyo.  If the piece is signed by someone else, it is unlikely to be a Nampeyo.

One of the controversial points of Mr. Elmore’s theory has been his assertion that the trader Keam was working extensively with Nampeyo and that many of the modern ceramics, especially the pieces that show signs of mass production, are hers.  Though there are pieces by other potters in the collection, Mr Elmore has not identified another potter as producing large numbers of pots for Keam to sell during this period.   In the Autumn 2013 issue of the now sadly defunct American Indian Art Magazine (pp. 68 - 81), David Schramm takes issue with this assertion and mounts a pre-emptive attack on Mr. Elmore’s argument, entitled "Righting the Record."  The number and specificity of the points about which Mr Schramm takes issue with Mr. Elmore is disturbing; the manuscript was still under review at this point and the contents should have been confidential, yet the record being righted is the very thesis is Mr. Elmore's unpublished manuscript.   This seems to be another lapse of professional ethics with Mr. Elmore’s work surreptitiously given to yet another researcher (see previous blog entry for another such breach).

I want particularly to concentrate on the novel method Mr. Schramm suggests for identifying the work of another potter in the Keam collection.  Mr. Schramm quotes Jesse Fewkes about Morphy “Up to the present summer there lived a man at Hual-pi who had great skill in the decoration of clay tiles with symbolic figures.  Much of his handiwork is in the justly celebrated Keam collection, which ought to be carefully studied” and in a note “Known to Americans as ‘Morphy.’  Although a man, he wore woman’s clothes throughout life and performed a woman’s duties.  He died of tuberculosis during the last summer” (quoted from Schramm). That is all we have about Morphy.  There is not one attributed piece of his pottery in any museum; there are no published photographs of him or of his ceramics.

If I wanted to try identifying Morphys in the Keam Collection using the limited amount of information that we have, I would search for well made tiles with similar design sets that set them apart from other tiles in the collection.   They would need to be of a type that are not seen on Hopi pottery after 1891, when Morphy died.

Mr. Schramm chooses a very different tactic.  First, Mr. Schramm identifies Fewkes’ mention of tiles displayed in Madrid in 1892  as perhaps a reference to Morphy (though Fewkes does not mention Morphy in the quoted passage).  Next Mr. Schramm  theorizes that if Morphy was painting symbolic figures on tiles AND if katcinas were the symbolic figures referred to, then Morphy probably  painted katcinas on bowls and jars as well.  Next, he assumes that these tiles, bowls, and jars with katcina figures by Morphy are in the Keam collection misidentified as Nampeyos.  

This method relies on a string of conjectures, all of which must be true for the conclusion to follow.  Despite the tenuousness of this line of reasoning, at least one Pueblo pottery dealer embraced what I call the  “Morphy Method”  and has attributed and sold ceramics by Morphy. 

In fact, there may be works by Morphy in the Keam collection.  However, I mention this aspect of Mr. Schramm's paper to show the very different standards used to judge work submitted for publication.  If we go back to the critique of Mr. Elmore's research by reviewer #1, we see that, with far less reason, Mr. Elmore was criticized for basing his analysis on "assumptions and unsubstantiated argument", for lacking "art-historical analysis....rooted in documented or safely attributed examples".  Mr. Schramm is not expected to meet the same high standards as Mr. Elmore.

Of course, as with all scholarship, new evidence comes to light and that evidence needs to be evaluated and incorporated with the previous information.  For about ten years now, a group of pueblo pottery scholars has been referring knowingly to materials in the National Archives that they have not been willing to share with the larger community of interested collectors and scholars.   If this essay does nothing else, I hope it will prompt these scholars to actually publish the material that they have discovered so all can evaluate it for themselves and the study of Pueblo pottery can progress. One reason Mr. Elmore wrote his book was so that the ideas he had been developing and using over a period of more than 20 years could be available to other scholars, collectors, and artists, including the Hopi-Tewa potters.

Since publishing In Search of Nampeyo,  another Hopi pottery researcher gave Mr. Elmore 80 photographs of drawings made by Nampeyo’s great granddaughter Dextra Quotskuyva, which the researcher  took in the 1980s.  Many are copies of drawings Nampeyo herself made.  Some are sketches of ancient pottery and pottery shards, some are partially worked out designs.  One of them is shown below.  A fitting place to end this essay is with the promise of an upcoming study of this new information that will help us figure out more about the origins and development of designs on old Hopi pottery.

A judge has just ruled in our favor on the copyright claim discussed in blog #1.  We are relieved that Harvard was not granted copyright to the Native American designs on pottery in their collections and that Steve was found innocent of copyright violations.  However, In Search of Nampeyo is still under a temporary injunction and cannot be sold. Please sign the Free Nampeyo Petition asking Harvard President Drew Faust to stop censoring In Search of Nampeyo.


 This is the third in a series of blogs about In Search of Nampeyo and Harvard's lawsuit against Steve Elmore. Future essays will deal with the judge's decision in the copyright infringement case, contracts and abuse of the legal system.

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A Researcher's Worst Nightmare at Harvard University

Researchers who depend on an ethical process when they submit their work for review may suspect that the process was perverted in some way when their work is rejected, but reviewer anonymity and confidentiality usually prevent the researcher from having access to information necessary to evaluate the process.  In the case of Steve Elmore’s book In Search of Nampeyo: The Early Years, 1875-1892 which now is the subject of a lawsuit brought by Harvard, discovery documents give us a glimpse into their process and it is a researcher’s worst nightmare.  Harvard is still concealing many relevant documents and has put others under a protective order, so I will only discuss here, and link to, documents that are now in the public record.

For those not familiar with the academic peer review process, generally a work is submitted to a journal or book press and the editor sends it out to two or more professionals for review.  Reviewers submit their comments and recommend acceptance, rejection, or acceptance with revisions.  If the manuscript is not rejected, the author will be asked to address reviewers’ concerns and make suggested changes or convince the editor that the suggested changes are not warranted.  After the revised manuscript is submitted,  there are usually a few more exchanges between editor and author, and then the work is ready to go to press. 

Editors and reviewers are expected to adhere to ethical standards.  For instance,  International Standards for Editors  that were adopted at the World Conference on Research Integrity in 2010.    Among the eight standards listed are “Editors should make fair and unbiased decisions independent from commercial consideration and ensure a fair and appropriate peer review process” and “Editors should adopt editorial policies that encourage maximum transparency and complete, honest reporting”.  Peer reviewers also are expected to adhere to ethical standards.  Here are the peer reviewer standards issued by the Committee on Publication Ethics.  Among the standards are to respect confidentiality, declare potential conflicts of interest, not allow reviews to be influenced by the “origins of a manuscript…by characteristics of the author, or by commercial considerations”,  and to “refrain from being hostile or inflammatory and from making libelous or derogatory comments.”

The Peabody Museum Press solicited Steve Elmore to write a book for them on his discovery that many of the modern ceramics in their Keam Collection (purchased from the trader Thomas Keam in 1892) were the work of the great Hopi potter Nampeyo.   This discovery was only made possible by Mr. Elmore's 20 years of reading, research in other museums, and working with contemporary Hopi potters.  Mr. Elmore's first manuscript was submitted in April 2012.  The first reviewer called the editor and they exchanged emails about the manuscript.  Notice that ethical guidelines are breached throughout this exchange, and that the reviewer and the editor are full collaborators in these transgressions of ethical standards.

Reviewer #1 attacks  Mr. Elmore personally, calling him “not capable of comprehending the differences between collections” and “not prepared to do the required amount of research”.   He accuses Mr. Elmore of having ulterior motives, writing the book to promote the pottery he sells, while assuring the editor that dealers who curated exhibits in his museum have no interests in selling their own wares; these guest curators had “no agenda but to give appropriate recognition.”  He insults in advance the many other readers of the book who he asserts cannot distinguish between proper analysis and the “eyewash that is presented here”.  I would dispute reviewer #1 on his specific claims, but for the purposes of this essay, such ad hominem attacks should be a red flag for any editor seeking an objective assessment of a manuscript.  Reviewer #1 and editor Joan O’Donnell also agree that the other two yet to be received reviews, by professional experts in the field, can be discounted in advance as lacking “candor”.  In all the discovery documents we have received from Harvard, there is no evidence that these latter two much more positive reviews were ever taken into consideration.  Joan O’Donnell and her reviewer work together to write reviewer #1’s report, though it was presented to Mr. Elmore as the sole work of this reviewer.  

With regard to the actual arguments Mr. Elmore makes in his book, reviewer #1 rejects Mr. Elmore's use of the art historical connoisseur approach pioneered by Morelli and practiced extensively at Harvard University by Berenson and Sachs, among others.  Although Mr. Elmore  presents an extended discussion of his analysis of the Keam collection pottery, reviewer #1 states that there is “no art historical analysis”.  Though he rejects Steve’s use of an established art historical technique, Ms. O'Donnell and reviewer #1 freely rely on the paranormal technique of “ESP” in order to reject the manuscript.  ("With all the things I had heard about the manuscript, my ESP made me call you", "I'm indebted to you and your ESP").  Joan O’Donnell assures reviewer #1 that she is not uncomfortable rejecting the book, but she will need to "present strong and explicit arguments to my editorial board and the Museum brass”.   They also draft rejection language that is almost identical to the language used more than two years later.  Here is the December 10, 2012 email chain between the editor Joan O’Donnell and the first reviewer, whose name and other information has been redacted by Harvard.  References to the Case Trading Post, snow in Santa Fe, and museum exhibitions point to a museum professional in Santa Fe, New Mexico as this reviewer.

You might think, after reading this email chain, that the book would be summarily rejected.  That is not what happened.  Instead, Mr. Elmore was asked to do a major revision for a more scholarly series that the Peabody Museum Press publishes, the “Papers” series.  Mr. Elmore worked on this revision, answering each review point by point and adding 100 pages of new material, including more background about the techniques he employed in his analysis.  He submitted this revised version in November, 2013, and, with no intervening communication from the press, it was rejected in January, 2014.  Mr. Elmore was given a Formal Notification letter from the board returning to him “all rights” in the manuscript and recommending that he publish elsewhere.  Steve relied on this letter, double checked with two intellectual property attorneys, and then self published his book.  Harvard sued.

In Search of Nampeyo was available for ten months before being put under a temporary injunction until the case is settled.  During those ten months it sold well, received four national book awards, and garnered many positive book reviews.  None of the post publication reviewers agreed with the position adopted by reviewer #1 together with the editor.

I will write more about the specific contract issues that are at stake here in another essay.  For the sake of this essay on standards of professional conduct for editors and reviewers, I will focus on a few issues that came up after the book was rejected, but before the book was published.  Mr. Elmore became aware that Lea McChesney, a research associate at the Peabody Museum and curator at the Maxwell Museum at the University of New Mexico, had been given access to his work.  There are three lines of evidence.  The first is that Lea came into Steve’s shop in December 2014 and told him that she had contracts with the Peabody Museum Press to write on Nampeyo’s work in the Keam collection.  During that visit, she picked up many old Hopi pots and demonstrated to Mr. Elmore  by her questions and remarks that she had detailed knowledge of his arguments.  A few years earlier, in a discussion with Mr. Elmore, she had denied his thesis and has stated that she never uses the type of art historical research techniques used by Mr. Elmore.   Now that she had seen his work, she both agreed with his thesis, was working on her own book, and had "discovered" Nampeyo pottery in the Keam collection herself.

Steve Elmore has additional discovery documents in which Lea tells a friend that she had been writing to Peabody editor Joan O’Donnell and had meetings with her in which they discussed publishing “Elmore’s work” along with her own.  Lea has given a version of her own manuscript to the Peabody Museum, but Mr. Elmore has not yet seen it. we presume it was to be the substance of the second half of the "new" manuscript also containing "Elmore's work."  As Mr. Elmore had not been contacted about this new manuscript, we can only infer that she planned on publishing his discoveries herself.  Mr. Elmore's lawyers have asked Ms. McChesney for the emails mentioned, but so far she has refused to hand them over.  A third line of evidence comes from two emails from a scholar in California who had been asked to review In Search of Nampeyo.   She was confused and asked “Is Steve Elmore’s manuscript the only one in the volume?  I ask this because I have heard that there is a second study of individual hands in the same collection by another scholar.”  Here are the additional discovery documents.

My last example of ethical misconduct by Harvard is the result of a pre-publication announcement which Steve Elmore sent out.  Joan O’Donnell responded that he could not publish the photographs that he took “without prior written permission”.  She said that permission had not been granted, though in fact, it had.  The Formal Notification letter gave Steve Elmore  “all rights” to his manuscript; the definition of manuscript in his contract included both text and illustrations, and Harvard did not retain any rights for itself or restrict Steve’s rights in any way in this letter.  Furthermore, Mr. Elmore had followed all policies stated in the “Permission to Photograph” form he had signed.  However, it turns out that there were other policies that he was never given or informed about in any way.  Staff at the Peabody Museum realized that no one had given him these policies and the photo request contract that accompanied them and they supplied Joan O’Donnell with this information.  Email  correspondence  reveals that Ms. O’Donnell sent museum staff a draft of the letter she intended to send to Mr. Elmore, containing a paragraph about the policies and a link to the photo submission form.  At this point, the book had not been printed and there would have been a opportunity to work with staff at the museum and find a resolution that was satisfying to all, even at such a late date, and even though Mr. Elmore had been formally given "all rights" by The Peabody Museum Press board.  However, Ms O’Donnell removed all reference to the specific policy and the submission form before actually sending the letter to Mr. Elmore.  The editor deliberately hid these policies from Steve and precipitated the current legal situation, as you can see in the email chain from January 12-14, 2015,  So much for “maximum transparency.”

Lest you think that these editorial practices of the Peabody Museum Press are an exception to the general rule of professionalism and ethics practiced everywhere else, look no further than the report of Harvard's expert witness John Byram of the University of New Mexico Press.  Mr. Byram finds nothing to censor in the process Harvard uses or in Ms. O’Donnell’s actions, concluding that “The procedures followed by the Peabody Museum Press staff in this case were consistent with the common practices of similar scholarly institution publishers.” It is not surprising, although it is discouraging, that published ethical standards and assurances from editors of ethical practices are often quite different from the direct experience of researchers who variously described the process to me as a "popularity contest" and a "known scam".   This assertion by John Byram affirms that Harvard's process in this case is viewed as the norm by many editors, even while they publicly assert that they follow different and higher standards.  Here is the Disclosure of Harvard's expert witness.

In retrospect, Steve Elmore, an academic outsider and first time book author who had made a major discovery in the collections of the Peabody Museum was the perfect target for the sort of unethical practices documented in this essay.  My hope is that, after reading this essay, editors and presses will review their own contracts and procedures to see that they meet high standards.  However, my greater concern is for individual researchers who are vulnerable to having the process stacked unfairly against them for political and personal reasons and vulnerable as well to having their research results appropriated and used by others for their own advancement. 

How is an author to protect herself from becoming a victim of presses with these sorts of practices?  Some guidance is available from Mr. Elmore's expert witness Luther Wilson, a retired editor, who worked at many academic presses including the University of New Mexico Press. He faults Harvard for using contracts that are vague, for instance lacking arbitration agreements and termination clauses, and outlines how clear and proper communication between the editor and an author can protect both sides from the kinds of difficulties that arise in this case.  He also supplies a sample contract.  The meat of Luther Wilson's report starts with the "Analysis" on page 6; here is the entire  Luther Wilson report.  Hard as it might be, if you are presented with vague contracts and a lack of honest, open communication, it might be better to just walk away.

 This is the second in a series of blogs about In Search of Nampeyo and Harvard's lawsuit against Steve Elmore. Future essays will deal with the theory, the contracts, and abuse of the legal system.


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Why is Harvard Claiming Copyright to Native American Designs?

This is the first post for the FreeNampeyo blog.  

How In Search of Nampeyo came to be written

Steve Elmore is an Indian Trader and owner of Steve Elmore Indian Art in Santa Fe, New Mexico.  He has been studying Hopi pottery for over twenty years and works closely with contemporary Hopi potters. Events were set in motion when Steven LeBlanc, then Director of Collections at the Peabody Museum of Archaeology and Ethnology at Harvard University asked  Mr. Elmore to write a book for the Peabody Museum Press on his discovery that many of the ceramics in their Keam collection were the work of the great Hopi potter Nampeyo, and not a random assortment of pottery made by hundreds of different potters, as previously thought.  

Steve wrote the book and submitted it, eventually receiving three reviews, which he was asked to respond to.  He was then asked by the press to do a major revision of the book for the more scholarly “Papers” series, rather than the “Collections” series he had originally written for.  Six months later, he submitted this second version.  The manuscript was rejected.   A Formal Notification letter from the board returned to him “all rights” in all versions of the manuscript.  The letter recommended that he publish elsewhere and made some suggestions as to other publishing venues.  

Relying on this letter, and double checking with several intellectual property attorneys, Steve decided to self publish the book, as it had already been through many reviews and was essentially finished.  He published In Search of Nampeyo: The Early Years 1875 - 1892 in 2015.  In Search of Nampeyo  has won four national book awards, including awards for best art book and best interior design.  It has received many positive reviews. 

However, Harvard was displeased and sued him for breach of contract, copyright infringement, and false designation.  Steve countersued on a number of charges including bad faith, interference with business, and conspiracy to steal intellectual property.   Right now, the book is under a temporary injunction as Harvard has persuaded a judge that the book has caused them “irreparable harm”. 

Harvard's Copyright Infringement Claims

The rest of this post will look into the copyright issues that are raised by Harvard's lawsuit.  I will give the context and try to summarize the main issues.  

The Keam collection was purchased by Mary Hemenway in 1892 and after she died, donated to Harvard in 1894.  It was unpacked about 85 years later, and In 1980 Harvard published a book called Historic Hopi Ceramics (HHC) containing simple black and white photographs of the ceramics; it is a catalog of the collection.  In the manuscript that Steve submitted to Harvard were some photos cut from HHC  which he intended as place holders for future photography.  After the manuscript was rejected, he hired a designer to do three color, hand drawn, illustrations of the designs on these pieces of pottery and included these in his book.  These illustrations are the subject of Harvard's copyright infringement suit.  Harvard did not make any of the pottery and all these pieces of pottery were made before 1892 when the collection was purchased, so all would be considered in the public domain.  Harvard's argument is that since they photographed the pottery, no one can make copies of the designs depicted in their photographs.

In Hopi culture, designs are passed down in families.  Nampeyo taught her daughters to make pots and passed her designs to them and these designs have now been passed down and are in use by the fourth and fifth generations.  Nampeyo family potters consider the designs to belong to them and/or to their culture.  Despite Harvard's statements to the contrary, if the court rules in their favor, Harvard would in fact own not just the copyright to their photographs, but to the designs themselves. 

Steve did not use their photographs, nor did he make exact copies of their photographs.  The illustrations leave out all details of the pottery itself such as shadows, chips, cracks, uneven paint and slip, and fire clouds.  They also idealize the design, adding elements not visible in the photographs.  It is the designs that are the subject of the text and shown in the illustrations.  While it is true that the designer did use the photographs from HHC to create his designs, he also used additional sources in order to see the details of the designs and colors. 

Harvard claims that its catalog shots have sufficient creativity to be copyrighted as original works in their own right.  In particular, Harvard points to the choice of angle as original, because other angles could have been chosen.  Here is Harvard's strongest example.  They invoke the "reasonable person" standard.  The illustration should be considered a violation of their copyright if a reasonable person, without specifically searching for differences, would regard the two images as identical.

The big question here is where a line is to be drawn.  A clear case would be one in which a photographer used a Hopi pot as part of a photograph meant to be a piece of art in its own right.  If this photographer put the Hopi pot on white velvet, lit it with purple light, and surrounded it with apples, no one else could use the same set-up and take that same image without violating this photographer's copyright as the creative elements of background, lighting, and setting were clearly chosen as artistic decisions.  However, the fact that a Hopi pot was included in the photograph certainly does not give the photographer ownership of the design on that pot.  Court decisions have often relied on the technique of first filtering out public domain portions of the photograph, and judging copyright claims on the basis of the remaining elements.  On the other end of the spectrum is a verbatim copy.  If Harvard's own photograph was simply reproduced in Steve's book, this might be considered a copyright violation.

I say might be considered a copyright violation because the issue of fair use must be considered.  Since Mr. Elmore picked out a small number of pots from the entire Keam collection to use in a scholarly argument establishing Nampeyo as the artist who made these pots, the use he made of HHC should be considered transformative of the original work and serving the purpose that the fair use doctrine was established for, furthering the development and presentation of new knowledge.  He did not use the "heart" of HHC, which is simply a catalog and he did not decrease the value of the original book.  In fact HHC has increased in value since Steve published In Search of Nampeyo.

I have now read rather broadly on the subjects of copyright and fair use.  I do not think that Harvard has a legitimate case against In Search of Nampeyo, and I certainly don't think that Harvard has any right to Native American designs.  Those with the desire to read the pleadings will see that the lawyers for the two sides have very different approaches to the presentation of evidence and that the rhetorical strategies are especially different.  These differences, to my relatively inexperienced eye, often seem to influence a judge's rulings, seemingly looming larger than the law and the facts of the case.

The contract case is related, but separate.  Since the images were in the manuscript that Harvard returned to Steve with "all rights", the letter appears to have granted him the right to reproduce Harvard's photographs if he chose.

 If you want to read the court documents associated with the copyright, they are linked below.  Steve's lawyers filed a Motion For partial Summary Judgement, asking the judge to review the facts and the law and rule on just this aspect of the case.  Harvard's lawyer filed a response and also his own motion for a summary judgement for another photograph, and then Steve's lawyer filed a reply to the response and a reply in opposition to Harvard's new charge. 

MSJ
response to MSJ

Reply to response
opposition to cross motion

And, for fun, a song imagining what would happen if Steve Elmore really did have to power to cause "irreparable harm" to Harvard:  Dude, Where's Harvard

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