I want every picture of my ancestors given to me. Did I take the pictures, no. Did I pay to have them taken, no.
It is just that simple.
The bigger problem is that history is being rewritten these days. John McCain is not a hero because he was captured, our founding fathers being judged outside of their time and vilified as slave owners and on and on.
America get a grip.
8
Perhaps these pictures, and others depicting slave life in the antebellum South, should be displayed every time films like 'Gone With the Wind' or 'Birth of a Nation' are played, to help people who think the 'moonlight and magnolias' version of the peculiar institution see the REAL truth. Put a picture of Renty and Delia on the cover of the many bodice-ripper novels that take place in the South to show how really romantic those days were. Hand them out to the thousands of Confederate cosplayers so they can see what their treasonous characters were REALLY fighting for.
12
When institutions use human subjects for research, they are bound by strict rules and are required to demonstrate empathy through "respect for persons". These rules came about as a result of horrific studies conducted on oppressed populations that disregarded safety, autonomy, and informed consent (Tuskegee Syphilis Study possibly the most infamous example). Since these images were initially captured as "data" for "research" purposes, the very LEAST Harvard can do is retroactively apply the rules of research to the images and provide descendants the right to consent and financial compensation for any further use of the images out of deference and respect for the individuals portrayed and the historical context of these images.
Speaking of historical context, commenters focusing on the burden of "proof" of lineage should educate themselves on the family histories of citizens descended from African slaves. Apply the lens of slavery to your request for descendant "proof": Africans were captured, chained, transported, and sold all over the world. Once they were slaves they had families (often through sexual assault) which were frequently separated to be sold off or killed. Also consider the refusal to teach slaves to read or write, a tool for undermining the powerful ability to convey information across time and place. Do you have some family history or even an actual country you can claim in your heritage? Your request for "proof" is a hollow argument that does not stand.
20
@Metaphysical Club Yes, most Universities have an Institutional Research Board (IRB). Harvard has an IRB and they have to follow the guidelines of human subjects protection through the federal Dept of Health and Human Services, Office of Human Subjects Protection. Harvard has a registered IRB with DHHS and a FWA number which follows the ethical principles of The Belmont Report. There are a protected class of individuals where the guidelines for human research are even more stringent. The least one has to do is to get informed consent from the individual. Renty and Delia could not give consent because they were the property of a slave family. I agree, Harvard could retroactively apply these "research" images and others like it and ask for consent to use by the descendants.
16
I have many thoughts and feelings about this story. National Geographic apologized for their racist depiction of black people throughout the world in their race issue about a year ago. As a Ivy league educated young black woman, I believe Harvard needs to rectify this wrong. Harvard allowed this Professor Agassiz to research, publish articles and profit from these images all while saying that blacks are inferior. One only needs to read, "Stamped from the beginning: The definitive history of racist ideas in America" by Dr. Ibram Kendi. This book traces the historical significance of racist ideas back to Europe, Africa and how black inferiority spread and continued on to the Americas.
To anyone who one looks like me, this is not new. We have always been fighting against the establishment and how we are viewed in this world. Who owns the rights to a enslaved descendants picture seems easy to me. Some of the comments on this story are disheartening. If you are not a descendant of a enslaved individual, one may not truly understand how this hurts. Agassiz and the photographer who took these photos were not interested in the dignity, humanity, beauty of Renty or Delia. They only saw a black man, girl who didn't deserve their respect because of the title given to them, a slave.
67
When I take a photo of something, the photograph does not suddenly belong to whatever I took the photograph of. Do you really need examples of why this is so?
8
Blocked? Why?
Some calculations to mull over as regards reparations.
In 1790 the black slave population in the USA was apx. 650,000. Many people thought the population was so small that they would ultimately just mix in. However, by 1850 the black slave population was apx. 3 million. So on average (no clever math here - just back of the envelope calculations) for 60 years the average of black slaves in USA was apx. 1,900,000.
Assuming minimum wage that would come to say 20,000 a year or about 38,000,000,000 (38 billion dollars).
Today there are apx. 45 million blacks in the country with approximately half on welfare (again just rounded. Its actually 40% +). That would be about 20 million. Not even considering the other societal costs subsidized housing, Medicaid, food stamps. I forget what the average worth of social benefits is but I believe it comes to more than 20K per individual when everything is worked in.
We’ve had the welfare programs in place for about 60 years. In 1960 the black population was about 20 million people. So the black American population would average for this period approximately 30 million individuals.
Assuming half on welfare that would be 15 million or more on average. 15 million individuals for 60 years x 20,000 dollars comes to approximately 300 billion dollars.
So it is the black community that owes the white community a bundle for trying to help them out for the last 60 years, even though the overwhelming majority never owned slaves.
10
You ignored the fact that black people pay taxes too.
12
The photographs are from something horrible, it is certain. But I am tired of 'descendants' thinking they own something from long ago that their ancestors were part of. It's part of a greater history now, no matter what the descendants think or how pure their motives.
60
@Michael Browder
Brilliant insight, very clear thinking. Following her reasoning we may as well give the U.S. back to the Native Americans. What has past is past.
14
@Michael Browder I mean, it's not like black Americans aren't still feeling the repercussions of that 'long ago thing their ancestors were a part of', right? It's not like they're not still being discriminated against, devalued, suffering racism, and that we're in living memory of the time when they were disenfranchised, redlined, segregated? I mean, it's not like police aren't still shooting them unarmed, they haven't reached economic parity and they still have to struggle against the view they're somehow inferior?
They are still a part of it. It's surrounding them every day of their lives. So give them back their history and make good on the debt we owe them. (And while we're at it, yes, we oughta make good on the debt we owe the Native Americans for the awful crimes we perpetuated on them, too.)
50
@Michael Browder How would you feel if photographs of your great great grandparents were exploited and used for profit by institutions who made erroneous conjectures about your ancestors status and declared them inferior beings? I know you would be unhappy. Should we forget the lessons of history? Where do we begin?
38
I whole heartedly empathize with the Lanier’s desire to own a valuable proof of the injustice and humiliation perpetuated on their ancestors.
My parents photos taken between 1942 and 1945 as slave laborers in Auschwitz and Dachau, are on display in the holocaust museums and archives. I still own my father’s tiny bread satchel from Dachau which I intend to donate to a museum before it completely disintegrate. Unlike the Lanier’s, I have no desire to own these pictures because I knew my parents and (although I was never asked) I trust that Holocaust museums are better than me at educating and commemorating. America is only recently waking up to the magnificent museum in Washington and other powerful memorials documenting the horrors of slavery. Unlike the Jews, who opened museums immediately after the holocaust, African Americans had to wait till president Obama took office. It should be up to the descendants, themselves, victims of institutional apathy and racism, to decide where and how they want to commemorate and educate future generations. This their legacy and their story to tell. The cynical comments to this article shows that ignorant still prevails.
23
These images were created as an attempt to show the inferiority of slaves, so it’s ironic that what shines through in them is pure dignity, humanity, and strength. They also show evidence of true suffering. These portraits are rare and priceless treasures, thanks to the undeniable dignity we see in Renty and Delia’s eyes.
I can only imagine how it would feel to discover an ancestral link to these photos. Because so few slaves were photographed at the time, these photos are world famous and they carry personal meaning for countless Americans, not as objects of ridicule but as honored representatives of a time we are struggling to know everything we can about.
Now we all have a new opportunity to learn more from the family about these important historical figures. No institution should be using these photos for profit. They should be in the public domain. They’re delicate and a national museum or archive should keep them safe. Harvard has resources like Skip Gates who can and should help strengthen the family’s sense of connection with Renty and Delia. If we’re lucky, they’ll share it with us too. I’m dying to hear the stories of Papa Renty, treasured and passed down for generations, and about his decendents’ proud journey over the centuries.
75
@Erin P Very well expressed. Your words truly do shine the light of respect and honor on Renty and Delia that they deserve. I would hope that Dr. Henry Louis Gates would join this woman in her research to find out more about her ancestors. I hope she is successful in giving Renty and Delia the dignity and respect they deserved long ago, for in our hearts we know, they are more than photographs.
19
@srgjones I truly hope so! You make such an important point about the greater issue at stake here, too— it’s not the photos as objects, but the humanity and memory of the people involved—past and present.
14
A valid claim could be made by the family of the photographer or by the descendants of Mr. Agassiz, depending on the terms of the contracts or how Harvard acquired them. Even if Ms. Lanier’s claims of descent are valid, which would be difficult to prove at best, I know of no law granting the rights to a photograph to its subjects.
56
Not to ignore legitimate questions of reparations and how we remember the horror of slavery, but wouldn't these images be in the public domain?
42
Is your family property in the public domain?
11
As a descendant of Africans who were enslaved, I can sympathize with the Lanier family. The Atlantic slave trade created a dark space that is so hard to find a way through. Millions of men, women and children stolen and stripped of their names, their language, their history.
Several people have made comparisons to the Holocaust, usually in an attempt to diminish the suffering of African slaves. Well, the Holocaust covered a period approximately 10 years, while the Atlantic slave trade covered centuries. The descendants of Holocaust survivors were financially compensated. Survivors were even given their own country. More importantly, survivors and descendants of the Holocaust are treated with dignity and respect. Read some of the comments and see if the same can be said about the descendants of African slaves.
I honestly don't know what should be done with these photographs. But I do know that institutions like Harvard, Georgetown, Lloyds of London, Barclays Bank and the many others that were built on the sweat and blood of African slaves should be made to acknowledge that they were built on the backs of those men, women and children they exploited and abused.
People like the Harvard professor have been trying to prove their superiority for hundreds of years. They're still trying. All one has to do is look into Renty's eyes and see who is TRULY superior.
49
If they belong to her family, both the photos and and residuals made from the images should go to the family. Even sympathetic scholars are complicit in using images of oppressed people to promote their books and careers. DNA research is making it possible to bring the images to life not as symbols, but as people, as ancestors, with living relatives those using the images are accountable to. Slavery isn't only in the past; those weren't throw away people.
13
So, make a copy of the photos for the descendants. They are lucky Harvard preserved them.
8
@Ayecaramba if those are her descendants then Harvard should have the copy, not the other way around.
9
Slaves cannot give consent re tangible or intangible personal property, such as the taking of a photograph or the photograph itself. Ownership should then follow the usual rules of inheritance. Whether the plaintiff is the correct person to claim an ownership interest, it seems clear that Harvard cannot assert a valid or meaningful property interest in the photo.
5
I have empathy for this family and all families who have had their family legacies stolen through war or slavery.
I did think of something I read... go back 6 generations and you are statistically no more related to your particular ancestor..than any person IN THE WORLD is related to them.
We maybe put a little too much emphasis on our unique heritage and not enough in our common heritage.
10
Who Should Own Photos of Slaves? The Descendants, not Harvard
Headline says it all.
3
Presuming Ms. Lanier prevails, would prisoners then own their mugshots (which are, similarly, taken while the individual is being held involuntarily)? Would they be able to sue municipalities that post offender images online for unauthorized usage?
6
For the first time in my occasional review of comments, I actually had to close the window after reading a handful of responses and stop reading. While many responders firmly and rightly support this family's efforts, I was appalled at the vicious and seemingly nonchalant racism of others.
Yes slavery 'ended' after the civil war, but since that time there has been continuous and relentless racism entrenched in American society. Period. There are examples from every aspect of daily lives, from redlining to education to criminal justice and the list goes on. The impacts of slavery have not stopped to this day. There is no single action that alleviate it, but this family's efforts are just and will hopefully be the start of a larger process.
23
I wonder what the copyright laws were at that time. Photography was very new, and the idea of profiting from the use of an image from a photograph was most likely not even considered. Do we know what Renty thought at the time, was he asked about it, or did Professor Agassiz just command him to sit for it? Concepts of permission are very new.
The best outcome would be for the Lanier family to assume ownership of the image, but for it to remain in a museum. These images are extremely fragile and should not be exposed to light, at least not ultraviolet. Besides, everyone should see this image.
One could argue that the photograph actually contains an integral part of the man because the light reflected off of him has become the image, a similar argument made by Susan Sontag in her famous essay on photography.
5
Recall that these photos were taken in 1850, well before the Civil War, when slavery was allowed by law nation-wide, in the North as well as the South.
Because slaves were considered lawful "property" of their owners, it is virtually certain that the photographer had to ask for, and was granted, permission to take the photos, not by the subjects but by the slave-owner.
If a photographer had walked up and stripped slaves and started taking their pictures the slave-owner would likely have shot him on the spot.
Just one more example of the countless depravities of slavery.
4
There is no right or wrong in this case. There is only a natural human emotion---anger at the racist atrocities of the past and present. When society and its institutions tell us "You have no right to feel anger" we get angrier. We want--no, we need to have our perfectly natural emotions acknowledged. But too often we are told "Get over it."
In the Unite States, the courtroom is the venue that many people--victims of racism, sexual harassment--- chose for this battle. How could this court fight have been avoided? Harvard, the powerful institution that profited from slavery could have said "We apologize humbly. What would you like us to do with these photos?"
15
Another idea might be to charge Harvard with rechanneling the licensing of the images and other paraphernalia. Even if the courts decide this specific family aren’t descendants they are still in a moral bind with thousand of other images and ephemera in their possession not readily available to the public that they are profiting from. Proactive redistribution of the proceeds and public access is something they should look into.
Carrie Mae Weems encountered a similar issue with her sourcing images with her series “From Here I Saw What Happened and I Cried” the university she sourced them from wanted her not to used them in this manner and she challenged that right to use with a dare. They declined to pursue the matter.
It’s clear these institutions understand the moral quandary they are in and public perception. Its past time to proactively address it.
9
If this lawsuit is successful then Elizabeth Warren should start angling for some Indian Casino profits.
10
Just started Colson Whitehead's The Underground Railroad. I wish I could remove from my inner eye the description of what slaveholders did to a man who was caught trying to escape. Many of those who say we should forget are simply trying to dispel their own discomfort. A national conversation about race is past due. Racism and fear still abound. I am not one for holding onto the past, but until the pain is brought to the light it will continue to fester our national spirit.
19
@Amy Haible You have a right to converse with whom you want, on subjects of your choosing, but, so far, you don't have the right to force others to join that conversation.
@me does that mean we can nix history class altogether? I mean, who wants to talk about a bunch of dead presidents, right?
@me Dear "me". I don't believe I said anyone should be "forced." But those who want to open dialogue shouldn't be shamed into remaining silent either.
1
I'm in the middle of a project examining a local African-American/Native American family who were enslaved here. The last member of this family died here in 1859 at age 95. She wrote a poem in which she says this is "nevermyland". I'd like to think she and her mother (who sued her owner for freedom), her father (who died fighting the Revolutionary War) and siblings would want their stories told. They were every bit a part of American as my own white ancestors. When I look at Renty I don't see an impassive face, I see a proud man who suffered and survived. The reason the photos were taken is horrible, but the stories of the people behind them should be told. So few of the stories of the millions of enslaved have survived. While I appreciate Ms Lanier's wish to own some of her family history, the collection should be donated to an institution devoted to African American history.
14
You think you can tell someone else’s family what they should do. No.
4
As long as the society is increasingly focused on people being aggrieved about almost anything and everything - including important things like slavery from centuries ago - and as long there are lawyers like Crump out there, we will all be awaiting the legal papers saying that someone is suing us because they feel entitled and want something from us - all of us. Get ready to be served, America!!
4
Simply put - we do not own images because we appear in them. We do not own all depictions of our likeness either.
We do not need to give consent for someone to photograph or video or audio record us or paint or sketch or mold our likeness.
That lack of ownership doesn't suddenly change 150 years later by anyone who is or claims to be one of our descendants.
7
@ML If someone uses our image for profit, they are infringing on our very ancient individual tort law rights. It is called "misappropriation of image and likeness". It goes back to long before America existed, and it was/is part of the Common Law, which the 13 breakaway American republics incorporated into their State law.
4
Have you ever examined your position? It's more complex. Permission always has to be granted nowadays before publicly putting an image out in the public domain. Ms Lanier's claim puts a light on some aspect of this. Renty and Delia (whose photo of her chest was at least cropped )did not sit for some family portrait in their Sunday best. Our History as a racist nation is not a priority over a family photograph. There is substance to her claim. Read "The Case for Reparations" by Coates from The Atlantic, or the Washington Post article about it March 20 2019.
7
@ML you do when the images are sold for commercial use or used in a disparaging way.
4
This Culture of Victimhood must stop!
"Papa Renty" was an African SOLD by other Africans to Europeans. If you want reparations for that sale, go after the people who sold him.
Further, and this will make people mad but truth is truth, until the middle of the 20th century, human life had little value unless you were the King, Lord, or the richest man in the town. This was true all over the world from the dawn of recorded civilization.
Every cultural practiced slavery of its own and of their enemies. Sometimes the modern translation of the title used for the "owned" people in older cultures sounds less harsh than "slave" but slaves they were. People could buy, sell, trade, and harm other people that they had complete control over. That is slavery by any name.
We CANNOT view the actions of the past through the moral values we hold today, it is simply inapplicable to the reasons, thoughts, and motivations of those in the past. It does not matter that today we as a people know slavery, by any name, is wrong.
History is what it is and we cannot change it or make it worse than what it was by rolling in Faux Rage over events that happened to people hundreds of years ago.
As property Renty and Papa Renty did as their owners told them to and those photographs are the property of the University, and most certainly not a possible descendant who has no proof or moral standing to take the property.
Blood does matter in Genealogy no matter what the whiner in this article says.
14
No one forced Europeans to purchase persons offered for sale by Africans. Those Europeans enlarged the slave trade greatly and Europe profited handsomely from it. The Transatlantic Slave Trade is why Europe is as rich today. So it is just to hold Europeans accountable. And it’s not holding on to a culture of victim hood. It’s knowing your history, and refusing to forget that history because it makes others uncomfortable.
9
@mike Truth is the devolution of chattel slavery that specific to this time period was unprecendented in its scope and form. The people who sold them actually did not know the completely inhumane and brutal methods that were being practiced. It had a specific name, chattel, not any other name.
There were people then that had moral values and knew chattel was wrong then. This country has never truly learned or dealt with its history. Yes changes actually to need to be made present day as a result. Thats a truth its time for you to face Mike. Its also a truth many current institutions built on these shakey values that were never dealt with need to face as well. Morals do matter Mike no matter what you say.
2
"Easy to do Justice, hard to do right," those words from a play and several movies called 'The Winslow Boy,' neatly sum up the problem here. Some time after the end of WWII the German Government instituted a program under which any of the family members of someone who had been placed in a Concentration Camp, or had their property stolen between 1933 and the end of WWII, has the right to claim German Citizenship, German Healthcare, and a German Pension, as well as an EU passport. Germany is also one of the best trading partners that the State of Israel has had since the end of the War. When you have done something wrong and you know it you should make reparations any way you can. I think that it is time for our entire country to make reparations to the descendants of people who were forcibly enslaved and prevented from having their complete citizens rights until 1964. Moreover they are still stung with hatred continually in America.
12
@Joel Friedlander Have you heard of Affirmative Action, which has been in existence for over 60 years? I agree that anyone who has personally owned a slave, or bought/sold another human being should make reparations, but reaching back over 150 years is absurd.
5
@me You think Affirmative Action is reparations for slavery? Let me disabuse you of that notion. Affirmative Action is used to address the bias and discrimination that has been ongoing in this country since slavery ended.
7
@Robert P Affirmative Action is intentional economic benefit to African Americans, at the expense of white males, so, looked at that way, it could be seen as reparations. I take it you want all African Americans to just receive a check. For how much, can I ask? Where will the money come from, specifically? Obviously, African and Arab descendants of the original slave traders won't be coughing up any money, and neither will the Brits or Dutch, or any other former "accomplices". So where will the probably trillions of dollars come from? Members of America's white working class, I would be willing to bet.
2
Was Agassiz an ignorant racist?
Positions about race taken by Agassiz would certainly be considered racist today. Racism is a terrible scourge.
Yet he was no ignoramus. He was among the early public supporters of evolution when that was far more problematic, given the opposition, than now. In 1850, when he began working at Harvard, the disciplines of sociology and anthropology as we know them today were in their infancy. Genetics was entirely unknown.
Scholars struggled to explain the differences between peoples with none of the tools available today. So it would be unfair in assessing Agassiz to consider his racism equivalent to the racism of someone holding the same views today.
6
@polymath Stephen Jay Gould wrote an essay along these lines in one of his numerous books. Of course, Agassiz was wrong about genetics, but right about lots of other things.
Agassiz could’ve chosen to sit and have a conversation with Frederick Douglas or any number of black persons of that time and learned something about the stupidity, ignorance and cruelty of racism. Or he could’ve sat with white men like Charles Sumner, Thaddeus Stevens, William Lloyd Garrison and others to enlighten himself about racism.He made a decision to be racist and to see biology through a racist lense. It was not his only choice.
3
These pictures are part of the public domain and as such should remain with Harvard University. If not, every photo taken for the last 200 years could be subject to the same challenge. Class pictures, snapshots of large groups, even arrest photos, where would it stop?
Pictures from the Holocaust and so many other atrocities committed worldwide serve to remind us of what the worst side of humanity can produce. They stand as evidence of what fear, ignorance and hatred can do and need to be preserved.
Harvard has repudiated the original source of the pictures but needs to preserve and use them as a reminder of what lies so close beneath the surface of humanity!
11
Legalities aside, let’s address these folks as ‘enslaved people’ much like we say ‘holocaust survivors.’ ‘Slaves’ implies that their nature was to be slaves, it dehumanizes them.
6
In a "companion" article appearing today in this paper, people are outraged that the owners of Hudson Yards can claim ownership of selfies taken by visitors.
But let's assume this plaintiff can get around the numerous legal problems here, and further assume she wins all the way to the SC, then I suppose photographs of Holocaust would also "go private," along with dozens of other obvious examples.
It net effect would be to privatize most images with the result that (for instance) no one would ever find out about slavery, and Holocaust Deniers would have the proof they need, etc.
So I say, "Go girl!"
Regarding the English Professor's statement that he would " be very excited to work with Tamara,” ....[b]ut the bigger issue is it would be very hard to make a slam-dunk case that she believes she has,” if he is not a trained genealogist he may not be aware of the efficacy of the Genealogical Proof Standard that applies to produce credible proof arguments for parent-child links between descendants and enslaved Americans of African descent.
LaBrenda Garrett-Nelson, JD, LLM, and Certified Genealogist(R)
6
Not so long ago Henry Louis Gates revealed to Brooke Shields on Finding Your Roots that she was a direct descendant of the French king Louis the IV. I think that we can all agree that it would be preposterous for Ms. Shields to sue the French government for any part of Louis’ legacy including the use of his photographs.
2
King Louis was not an enslaved individual who had no say in being photographed.
3
Different people see things differently. In my opinion the photo should be used as a way to educate the public about the conditions endured by slaves. People can talk about slaves and how they were treated but, a photo has a greater impact.
2
Why wasn’t the family story about Renty that was passed down printed in the article? Would have been fascinating to read.
No question what the outcome should be as the lawsuits will likely become messy and time consuming .
Both parties should agree to donate the photos to the National African American museum ( Smithsonisn ) where they can remind us of a man made atrocity that shall never be replicated and the family’s story can be told. Those pictures are heartbreaking and deserve a shrine of some kind that matches the dignity in the faces of the subjects.
8
My people, ancestors, were mistreated by the Egyptians, Persians, Catholics, the Poles, the Russians, the Germans, the Spanish throne, and Arthur Godfrey.
I demand royalties on all the books containing stories about my ancestors,
and
reparations.
13
@MauiYankee it's your right to do so, particularly when you can trace their mistreatment to unfair legal policies embedded in public institutions that continue to present day as many African-Americans and indigenous Americans can.
2
If DNA doesn’t establish Native American tribal membership then why should it establish family membership in slaves. I have “family” members who have lived with me and I have taken care of even though they are totally unrelated. The oral history should be enough. I particularly like the Furman professor who condescendingly says he would be happy to work with her. She doesn’t need him.
2
@Richard
There is a problem with the difference between Tribal Membership and having Indian Ancestors and the Faux Rage trump has created over the situation with the Senator.
She never claimed she was a Tribe member (as far as I know anyway from all the published reports) so the whole kerfuffle is smoke and hate from Trump.
Taking care of someone does not make you a legal heir or relative for legal purposes.
This culture of victimhood must stop. Africans sold Africans to Europeans. If you want reparations, go find the sellers descendants and sue them.
6
Europeans were not forced to purchase slaves. They greatly enlarged the slave trade thru their enthusiastic participation. They benefited the most from the slave trade.
The images belong to the family as the photographer used the subject without permission.
2
@William
You do not own images of yourself simply because you are in the images.
1
Let's imagine that your daughter has been kidnapped and the apprehended kidnapper decides to write a book from his prison cell and he includes naked pictures of your daughter that he took while he held her captive. OK now let's imagine that it happened to your grandmother. Now is it okay? How far back does it have to go?
12
These photographs are not now nor were they ever intended to be works of art. They were made in the service of documenting a racist’s point of view of the specimens’ biological and physiological differences & inferiority from the mainstream Caucasian so-called human race. Intention matters in the manufacture of an object. Basically they are a laboratory slide, equal to a smear of blood on a glass plate.
Return them.
6
@Mo
since when do you get lab slides back after the lab techs are done?
2
Arguing sides and deciding points of law do not apply for me. Morality does. Slavery was wrong and not arguable. The situation should not devolve, rather be elevated. The morality of this situation takes precedent. Images of immoral acts, such as these, should serve as public reminders that actions of enslavement were wrong and may not be held hostage by any side in the argument. They must serve as public reminders that the immorality of slavery as an institution can cannot be countenanced, rather placed on the highest public pedestal for everyone to see, think about and continue to learn less of morality from.
1
@Michael Gannett
The legal argument is inherently a moral argument. What is astounding is that it has taken 170 years for this country to reach a point of morality where someone can even consider bringing a legal case that taking a picture of a person in bondage does not give the photographer (and their heirs) the rights to that photo. The court decision will ultimately be a statement that the actions of enslavement are immoral acts..
4
@Michael Gannett
I can agree wiht the importance of displaying these pictures for historical puposes, but only after they are returned to the rightful owners, the descendants, who can choose to do so....or not.
1
@Michael Gannett
so you are the moral arbiter of the U.S.? You get to decide what is moral and everyone must bow down to you?
when did that election happen?
you sound like all the "moral majority" types that are now the supporters of Trump; demanding everyone bow to their personal demands and behaviors despite the law and sanity,.
I don't see the expression in the image of Renty as being 'detached.' I see it as being full of unfathomable anguish. Black activists are perfectly right when they state that White people simply do not see the pain of Black people (this is also well evidenced in many of the comments here). America truly has a very long way to go in overcoming its legacy of White Supremacism - if it ever even will. I have my doubts.
7
It's astoundingly ironic that in an article about the non-consensual use of images of enslaved African Americans, Rick Kurnit should compare them to what the author of this article, A. Hartocollis, describes as "the famous photograph 'V-J Day in Times Square'" which she paraphrases Kurnit as saying "belonged to the photographer and not to the sailor or the nurse who are kissing." But the couple in the famous VJ-Day photo is not "kissing," a verb which unambiguously conveys mutual consent to the act. We now know - and have for some time - that this was not a mutually consensual kiss but a sexual assault. That Mr. Kurnit should use this photograph as an example to bolster the case against ownership of the daguerrotypes rightfully devolving upon Renty's hiers strikes me as being apropos on more than one level. Like the daguerrotypes in question, ownership might perhaps be strictly based on who captured the image. But both images represent human beings whose rights were being violated in the very moment captured for all of posterity to see. Surely we as a society are coming to a point where we recognize that exploiting or even disseminating images of human beings being victimized should be regarded differently than mere images of people taken in a public space where there is no "reasonable expectation of privacy." An image of a man or woman held in bondage or of a woman being sexually assaulted is not the same thing as an image of a free man or woman walking down the street.
2
We are surrounded by cheaters and scandals. Majority of elite museums are returning artifacts that were taken by white executives from other countries with no acknowledgment of how they were able to obtain these rare pieces. Most of Egypt is in the London museums
Harvard which perceives that they are very special white people made an insane decision to fight the family in regards to historical pictured that is in no way is there property
The days of elite white institutions doing what they want are over . Apparently the brilliant minds at Harvard which gave us anti democracy Facebook didn’t get the memo. Harvard has a great deal to attone for since they to like the banks made a great deal of money off the backs of slaves. Harvard gives a great deal of lip service but nothing ever changes because it is run by people who could care less about minorities or the future of this country,
2
This can't be for real , can it?
Next we'll have ancestors of Columbus, De Gama, Davy Crockett, Hannibal, perhaps even Adam and Eve join this incomprehensible argument.
I for one am all about leaving history be. Not skewing, erasing, politicizing it. This is one train that has clearly gone off the rails. Let's stop this madness, these ridiculously based causes that contribute squat to our lives, only discord, confusion and consternation.
I used to roll on the floor seeing Carson, Leno among others ask people on the street simple Americana questions or world event questions and get blank stares, stutters or simply inane answers. That's where we are. Promoting arguments such as this is lost in a vast majority of Americans. A shame that this is getting any attention at all.
9
@Nick DiAmante Your apparent personal detachment from slavery may be a product of regional differences in immigration history. Some people think those differences can opt one out of responsibility for American history. In reality, every American shares that responsibility, even if he or she only took the oath of citizenship yesterday.
1
@Sequel
No one alive today is responsible for anything that happened over one hundred and fifty years ago.
5
@koln99 You would need a constitutional amendment to create a statute of limitations to that effect.
If the photo was taken with or without slave permission is moot since slaves had no rights. - Simple.
After all this time, the photo's are 'Public Domain' - The only one entitled to the original copyright was the photographer and/or the institution or person that hired him. - That is copyright law. (If, however the school chooses to make them available or not is up to them).
Slave reparations is bogus since the only people et.al. entitled to it were the slaves themselves.
12
What's the big deal? Take the pictures to a local CVS and for a few bucks make all the copies you want, give them to whomever you choose.
8
Surely there are many more people who descend from the people in the daguerrotypes. How does Ms. Lanier calculate their share in ownership?
12
Legal matters aside, Ms Hartocollis errs significantly in her description of “the subjects’ ... detached expressions.”
There is nothing “detached” about Mr. Renty’s expression. The pain and sorrow etched in the furrows on his face and in his searing, traumatized gaze are plain to anyone who gives more than a cursory glance at the photo.
Our lack of empathy for what this man (and millions like him) experienced, and our belief/denial that we have been enculturated to be anything but racist, doom this shattered nation, festering in the guilt of so much genocidal history, to perpetual grief on all sides.
Instead, we should stand in complete awe of their survival in the face of all that they endured and we should do everything in our power to acknowledge and honor that fact.
Until someone comes up with a better idea, reparations / restorative justice should be front and center.
3
The suggestion by some that Tamara Lanier would not know how to care for these fragile, light-sensitive daguerreotypes, should she win her case, is paternalistic, insulting, patronizing, and racist. Plenty of wealthy white people's fragile property is on permanent loan to local cultural institutions that exhibit or store the paintings, textiles, etc. under climate-controlled archival conditions. Nobody suggests the wealthy white people are too incompetent to own their treasures. And plenty of rich white people purchase irreplaceable cultural treasures and nobody questions their ability to care for them. Give Ms. Lanier the same credit for being an intelligent and thoughtful adult who is fully capable of making such decisions. Give her credit for having the goal of owning and controlling the use and profit of the images. She's fully capable of deciding whether that does or does not require that she be their physical custodian.
8
If someone took a picture of my grandpaw and that photo taker's grandson decided to use my grandpaw's photo as a trademark to put on a jar of peanut butter the only thing I could legally do would be to buy a jar of that peanut butter and say "That's my grandpaw on that jar of peanut butter!"
7
I thought that daguerreotypes, as old as they are, would be in the public domain, no matter the circumstances.
5
If someone takes a picture of me, it's not MY photo, but theirs.
5
Dignity. Dignity is the issue here. Those were human beings who were ripped from their own families, prevented from having any agency in their own lives, and used as mere subjects of whichever theory was on the minds of "scientists."
Those photos are heartrending. Those people have descendants who want to claim back some modicum of the humanity of belonging to a family irrespective of copyright issues, preservation issues, or institutional provenance issues.
The picture of "Renty" is the picture of a man with a story, a life. It should not be on display any more than it already has. So much was taken from him. This whole article has many examples of, sorry, white usurpation and white entitlement. They were "taken as part of a racist study arguing black people were an inferior race." to begin with for example.
I hope Ms. Lanier gets the photos. And would be very interested in a follow up article!
3
It pains me to write this as I am sympathetic on an emotional basis, but I think Ms. Lanier's case is extremely weak. Her claim to being a direct ancestor appears to be based heavily on anecdotal evidence. That alone could sink her suit. If she is making a claim on property (the photos) that has not been contested in more than 150 years, the burden of proof is going to rest with her. A court of law is not an emotional therapy session nor is it likely to look kindly on being used as a soapbox for railing against the evils of slavery. They are going to want hard evidence.
Beyond which there are thorny legal questions that no one seems to be raising. People are using the word "theft" a great deal. If we presume that slavery was more than immoral, but also unlawful at every stage in our country's history then that might hold water. But as of right now that is not the case.
By law these people were in fact property. As disgusting, vile and evil as that may be, it was a legal fact at the time. In order to make a claim of theft the plaintiff would have to establish as a matter of law, that those slaves were not property. And that would be a claim that I don't see flying, if for no other reason than it would create a legal precedent on the scale of an atom bomb in terms of what it might unleash.
8
@John C. The concept of reparations are based on the precise notion that some thing that was lawful and fully prescribed as legal and just in history was clearly massively immoral and unjust in hindsight, a colossal mistake that caused a long legacy of harm and destruction.
@Simone
I agree. But reparations, about which I am ambivalent, are a political issue, not a legal one. As long as slavery prior to 1865 is recognized as lawful, there is no basis for the subject to be addressed in the courts. That issue must be decided by the ballot box.
1
There seems to be a movement of playing on slavery and racism to get things such as money or reparations or even eliminating the Electoral College today. Shaking down Harvard may end up working for this lady but the law is clear. The pictures belong to the photographer and once the copyright expires whomever owns it.
That doesn’t change because the person depicted was a slave.
8
@Ed Bingo. The reason NYT covered this story is its role as precedent for future "reparations" cases and legislation.
1
it sort of feels like the photographs should not be displayed while descendants are alive to see it , and yet, how else can the history be known by all? It should be done respectfully, however.
2
This is what America has become. A society with no social bonds. A country with no citizens. Just a bunch of hyphenated people deeply offended by everyone else they encounter, for any offense, past or present, great or small. A country with only two political parties that have as their core mission the goal to divide the nation into a thousand different stove-piped echo chambers. With each citizen an expert on all matters great and small thanks for their 160-character Twitter research.
8
She wants to license the photos? Shouldn't these photos be in the public domain? They certainly are beyond any expiration of copyright. And as far as I've read, the mechanical reproduction of a public domain return it to copyright. Or am I missing something here?
4
No. See bridgeman v coral.
US copyright law says they are wrong.
1. It is quite legal to profit from these images.
2. The owner of the copyright is whomever took the photo, unless copyright was transferred.
3. Anything created pre-1923 is in public domain anyhow.
As for the physical picture, there is no legal principle that the subject of the picture gets automatic ownership rights. This will be quickly tossed and Harvard will win lawyer fees.
5
"were commissioned by a professor at Harvard"- therefore, by law, Harvard owns the title to the objects. As terrible as the circumstances were that created them, they still own them and can do what they want with them by law. I don't think the descendants of the Mona Lisa can claim ownership because it's a painting of their ancestor. The images themselves, not the physical objects, - are in the public domain and therefore a good scan can be used by anyone, anytime. The copyright, initially held by Harvard, expired many years ago. Harvard charges fees for use to cover their costs, as all institutions that have collections, must do. With all that said - if they transferred ownership to the African-American Museum in DC - it would be a nice gesture.
7
This issue of ownership is so vexing but the logic is simple. When I visit Washington DC, I am always overwhelmed by the power of its architecture and the burden of its history. All those buildings were built and maintained by enslaved black men and women, so the nation is deeply in debt to those builders. Maybe Ms. Lanier won't be able to establish that Renty was in fact her ancestor, but that doesn't diminish the debt Harvard owes to Renty's descendants.
1
Case law may not be on the family's side, but the impact of the images lend a powerful support to the moral questions attached to the claims. When is a wrong time-barred, and if it isn't, what remedies should follow?
3
Other than asserting remembering oral histories, is there a conclusive asset trail that shows that this claimant should receive and benefit from these photographs?
Or is it just a money grab, and a political claiming point.
1
Sad story, evoking sympathy. But photographs are works of art, and they belong to those who create them and their inheritors. Not the subjects.
4
@boroka, works of _art_? They were un-consented to lab photographs.
3
@Lisa
Nevertheless, the photos do not belong to the subjects.
3
Let her have her day in court. Then, the law will crush her. The Common Law loves practicality and finality that allows (living) people the greatest opportunity to utilize resources for themselves and for the benefit of society. It hardly gives a fig for "justice," which is a messy idea at best. She would have had more success with a tear-stained social justice Twitter campaign than a court of law. But thank god she decided to fight there, as she's going to lose, either now, or on appeal.
3
It may be a little politically incorrect but in order to claim historical documents like these there would need to be proof, beyond "I believe". Given that free citizens of the period lived their whole lives without documentation, this could be an interesting exercise.
What happens to the Laniers if an investigation does not support their claim? Collapsing delusions can create considerable psychological, collateral damage.
4
I don't think these photos properly belong to either Ms. Lanier or to Harvard as no trail of ownership exists for either party. They are historical artifacts that belong to the people of the United States.
Since the United States government bears primary responsibility for Ms. Lanier's inability to prove her claim, and for Harvard's having acquired stolen property under the color of law, the government should preserve and display this memorabilia in a way that redresses the specific injury inflicted on Ms. Lanier and all descendants of enslaved people.
The memorabilia should become part of a government-sponsored institution that raises money through the licensing of such items, with funds devoted solely to the purpose of identifying and preserving and accessing all documentation of enslaved persons so that victims such as Ms. Lanier have greater ability to reconstruct their family history.
5
The images are her ancestors, may be, but the pictures were taken by the Harvard professor. Harvard owns the pictures. The descendants probably should have the right to compensation on behalf of their ancestors. If the images still are libelous, then suppressing their distribution mind be reasonable. Otherwise, the lawsuit is frivolous.
4
My ancestors were part of the devastation in the American South during the Great Depression. Surely if I were to do some genealogical studies, I could draw connections between myself and some of the subjects of Dorothea Lange’s remarkable photographs of the victims of those times—gaunt men waiting in line at soup kitchens, migrants on their way to California, starved-looking families on the porches of shacks. These photos are rightfully in the public domain, held in the National Archives, the Bancroft Library and other repositories. I am very happy that they are there as an important part of the historical record, which I or anyone else can access at any time on line.
12
@Margaret Jay
The difference is that your poor relatives were free, poor or not. Her antecedents were captured in Africa, sold to traders, mostly Arabs, then transported to the Caribbean in the holds of ships where many died; They were later sold to plantation owners. They were also sold on open markets to Southern bidders; once sold, they became property. I can't speak to her lawsuit; I understand her belief that she is owed some recognition, financial or otherwise. FYI: I grew up in the Central Valley and remember the Dust Bowl migrants. They were poor with no safety nets. Many went South to work in shipyards.
Your parents had a choice. They didn’t have to strip on command and stand like an animal (which was the prevailing theory of the professor ordering the photos) — or face dreadful consequences that included whipping or possibly death. If these photos were being used in the same way that the Auschwitz Memorial honors those who suffered, then Renty, Delia and others are serving a higher purpose and profits are used to further inform, without varnish, a hate filled era. The striking image of Renty however served as a cover to a book...from which Harvard and the book’s author will personally profit.
3
@Linda Miilu and @Suzi
Baloney! The photos of slaves are just as much part of history as any other photographs of an era or an event. Their photos do in fact inform the historical record, just as do the hungry faces in photos of the unnamed men who stood in bread lines. Or the patient Japanese-Americans who were photographed as they waited in line for buses and trains to take them to detention. Or the Jews in concentration camps, including the dead, many of whom could no doubt be identified by descendants. This is a case of opportunism made legitimate by the current culture of victimhood.
2
There is a strange illiteracy in the discussions that evade historical fact that indentured servants of all types often had a horrible time in early American history. While it was from the mid-to-late 1600's that black indentures were extended to life (creating formal slavery), many non-black indentured servants suffered from gross maltreatment by the rich who manipulated their indenture contracts into lifetime service contracts, as well.
At the Founding, but for the issue of destroying too much wealth, slavery might have been abolished. It was only with the integration of American Southern raw material production (mainly cotton, but not only cotton) into the world capitalist economy that the demand for slave-labor again increased and slavery intensified -- to then be ended 60 years later.
In short, the period of slavery is short. The history of class oppression is long, and everyone suffered it.
2
Does a photo or for that matter any portrait legally belong to the depicted person or his/her descendants? And they are elegible for royalties? Don't tell that to the descendants of George Washington though. They might get ideas. Then again, looking at the comments, it is not really about the law but rather about what feels right, so a jury could very well side with Ms. Lanier.
1
It does trouble me that everyone is crouching behind the legal or logistic aspects: how will we prove x? what will it do to Y? what precedent will we set for Z? While all those arguments are relevant, how about starting from an ethical rather than legal point of view?
5
There are two questions here: who owns the actual daguerrotypes, and who owns the copyright to the images. (if anyone)
The copyright for images this old would typically be in the public domain depending on whether or not they had ever been published, and as long as the photographer has been dead for more than 70 years. However, these were buried in the Harvard archives until 1976, presumably having never been published. (note that they are Daguerrotypes, which are unique originals and not prints from a negative) If they were not published until after 1/1/1978, they are NOT in the public domain - they are copyright protected until the end 2047. And if they were published in ’76 or ’77, they would be subject to the "28 years + 67 years" rules. (thank Disney for that) If they were somehow published not long after their creation, then they would no longer be copyright protected.
As for the actual Daguerrotypes; who owns them is arguable. It may depend on whether or not actual descent can be proved. A daguerrotype is unique. Daguerrotypes of MY family from that period would belong to my family unless they were willingly sold or given up, unless they for some odd reason agreed to sit for Daguerrotypes which would then go to someone else. Since these were taken under slavery, it’s not clear that the physical objects should belong to the slave owner's heirs or his assignees after the abolition of slavery. Had the subjects not been slaves, they would have owned the photographs.
17
@S. B.: "Had the subjects not been slaves, they would have owned the photographs."
Where do you get that?
1
What am I missing? This seems easy.
If the Laniers have a reasonably good case for ancestry, and it sounds like they do, the photos should be theirs. And even if their ancestry case may be based on people who took care of each other rather than blood - well, so be it. Slavery destroyed and tore apart blood families. Let them have the families they made.
And who are these people who want to hang on to the bounties of slavery? Any modern person should be happy to give these back. The Laniers and their ancestors have lost enough. Give them the photos. What they do with them is their prerogative.
93
@Lindsay i’m not sure it is so easy to resolve. Do the rights of all National Geographic photos, for example, belong to the phtographers (or NG, depending on their contract) or to the people depicted in the photos and/or the owners of the places depicted?
7
Agree. Informal kinship should be treated as adoption since legal bonds between Slaves couldn’t be formed.
1
@LD You are correct. So now the images of the Holocaust belong to the people depicted in them? If they're in the public domain they belong in a museum or archive, if they are not yet in public domain they belong to the photographer or whoever commissioned it. Period.
3
For Harvard the decent thing to do would be to hire an independent expert to determine if Ms. Lanier has a reasonable claim and, if so, settle with her and perhaps set up a scholarship fund providing first for any descendants of Renty and Delia and then for other descendents of slaves.
156
If this isn’t the definition of a frivolous claim...
42
@spencer
Or they could just give her a copy of the photos, out of the goodness of their heart. They owe her nothing.
39
@spencer Harvard was not the slave-owner of Renty and Delia, Harvard had their picture taken, so I don't think scholarships for the descendants of Renty and Delia and other descendants of slaves are warranted.
I am sure that Harvard and Ms. Lanier's attorneys will hire prominent genealogists to support their respective positions and I suspect the matter will need to be settled in court.
15
I'm sorry, but not surprised, to see so many disturbing comments here. I'd like all the folks who seem most troubled by Ms. Lanier's claim to ask themselves how they would feel if it were a half-naked photo of their great-grandmother or or some other long-dead relative up there on a screen or on the cover of a book. I suspect that it's very easy for many commenters to see these not as images of people, but as objects of ownership. The more things change...
261
@Casey
Disturbing is not legal foundation.
Don't mix up emotions with the law.
48
@Casey - The most famous image of the Oklahoma City bombing is a firefighter carrying the dead body of Baylee Almon. The most famous image of refugees dying in the Mediterranean is toddler Alan Kurdi, washed up on a Turkish beach. Those who knew them as beautiful, living children, are surely retraumatized every time they see them. But that trauma does not give them ownership of the images. Those horrifying, awful images are absolutely vital for the world to see now and the people who come after us--people need to bear witness to these horrible images. Renty, and the suffering and humiliation he endured, should be burned into the shame of every American.
85
@Casey I' not troubled by it. I am confused that people are discussing a legal matter as if it will be governed by either morality or emotions when it will only be governed by the law.
24
One would think that Harvard University, which condoned Agassiz to strip a girl to the waist and photograph her, would want to settle this quickly to the benefit of Ms. Lanier.
Ms. Lanier deserves to have access to the photographs of her ancestors. Hopefully, she would agree to preserve these photographs in a reputable museum of her choice.
Trying to maintain ownership of these photographs is a bad look for Harvard.
53
@Henry Wilburn Carroll
It's also a fairly bad look to allow people to walk in and claim ownership of your property based on tenuous research and "feelings".
3
@Henry Wilburn Carroll
Nonsense. Harvard is the rightful owner.
1
I don't want anyone taking my picture without my permission, certainly not using it commercially without giving me a royalty. Well, Ms. Lanier's slave ancestor wasn't asked permission and had no legal capacity to give it. Harvard should pay her back royalties, and in future. I think that makes more sense than Ms. Lanier going into the photo business herself.
17
@Jay65 Everyone assumes the poor man wasn't asked consent. I very much doubt he was. But, since there's no way to prove that conclusively, it will remain an assumption only. Maybe that's heartless, but there's a reason why Justice is always depicted in a blindfold.
These photographs will be so fragile they might not even survive a year in a private citizen's hands. It would be foolish to let them out of their controlled environments and expert care.
48
@NorEastern
Surely that's the main reason Harvard is keeping them.
1
So Harvard should pay for the expert care for the Lanier family to preserve them where and how they choose to.
1
Disagree. A photo taken 169 years ago doesn't automatically belong to some descendent. Not in ANY case, regardless.
72
I think Harvard and other similar institutions who own daguerreotypes of slaves should start from the position that they are going to relinquish ownership. From that position they should negotiate with Ms. Lanier where these objects should go where 1) they can receive the needed care to maintain them; and, 2) where their use will benefit the African American community. Whether they'll do that and whether Ms. Lanier will accept that, I have no idea. But personal ownership doesn't appeal to me.
22
@Moxnix67
WHY should they relinquish ownership? On what basis? Always very easy to tell others what they should be doing with their property. I think you should relinquish control and occupancy of your dwelling place in favor of the homeless people camped down the street. No legal basis for that, it's just the right thing for you to doand i don't see how you could morally refuse to do so. See how easy that was?
4
@TLibby Well, a case hasn't been made, yet, for my home's involvement in homelessness. The daguerreotypes in question are not just that, they are evidence of a coercive deed imposed on slaves and for the benefit of the institution that now owns them. Harvard's claim to them is really based on possession only.
@Moxnix67. But possession is nine-tenths of the law.
1
Harvard must turn these photos over to Ms. Lanier.
9
@Steve
First Ms. Lanier needs to prove she is a direct descendant. What about all her siblings, first, second, third, fourth, fifth and sixth cousins that might have equal or greater claim to the photographs? It has been 169 years, therefore we need to assume their are many around who qualify as heirs. l
Harvard should admit a mistake set aside some money for all the heirs in a small trust and keep the photos is a safe place on behalf of the subject's descendants known and unknown.
1
@Steve is Ms Lanier the only living descendent of the individuals in the photos? Most likely, she is one of many — so why should she, uniquely, be the beneficiary?
1
I find it almost laughable how quickly people jump to the conclusion that proving a family connection will be impossible. Let her have her day in court. And no, the photographer cannot take pictures of trafficked people and somehow own the rights to the trafficked people. Human traffickers cannot consent on behalf of their victims. Therefore, he had no right to gift them to Harvard or profit from them in any way. And Harvard cannot & should not be the beneficiary of any profits from the use of those images. Jewish people wouldn’t stand for Nazi’s or their descendants profiting from images of their families during the holocaust, at least not without a serious fight. And African-Americans should not be expected to behave any differently.
But, with everyone rushing to judgment and with a quickness deciding, she has no chance; it does make it abundantly clear how afraid some people are legitimate legal claims being made by the families of those enslaved people. As for me, I’m wishing her well with her case.
35
@Sharon Bryant
It's not a legitimate legal claim. Harvard owns the photos, by law.
2
I’d be sympathetic if the plaintiff filed a lawsuit to have Harvard hand over the pics to the African American Museum of History. But to sue for emotional distress and not have an idea of what to do with these pics? The motivation here appears to be more monetary.
Secondly, how does the plaintiff plan to preserve these pictures?
42
@Angelica
While I see your point, and agree at some level, that shouldn't be really relevant to the case. If the basis of her suing is that they should belong to her not the Uni, then it doesn't really matter what she intends to do with them.
2
@Angelica
It's simple. The lawsuit is less about the photographs and more about money, attention, and precedent setting.
1
It's distressing to see people comment that there are no parallels between Ms. Lanier's claim and those of Holocaust victims. Just as the Jewish owners of works of art were able to receive compensation for their personal art and the reparations paid for harms, loss of property, the offspring of slaves deserve compensation from the fruits of their abuse. If the photos of slaves have monetary value and are also considered works of art or at least highly valued primary historical sources, then the descendants should surely receive a portion of the value. Maybe the licence to publish should revert to the next of kin? I wish her all the best in her quest for justice. Maybe this will get a conversation started on how best to compensate the descendants of slaves for their ancestors losses.
23
@Ellen
My multiple great-grandfather was undeniably and illegally ripped off in a deal involving property that is now extremely valuable. Of course, the transaction was entirely legal at the time, but why should that matter now? Why does that property, and reasonable back rent compunded with interest, not benefit my family now? My proof is dubious and ambiguous documentation, and family lore passed down for nearly two centuries that may or may not actually concern the property in question. In other words, completely ironclad and unambiguous. Morally, I don't see how you could dare hesitate before certifying my claim. I feel that you would be a very bad person for doing so.
@Ellen: There are differences that outweigh any "parallel." Jewish post-Holocaust art claimants aren't claiming they own the works of art because they or their forbears are depicted therein (a v. weak argument in any case). And they can often produce some legally significant evidence supporting their family's prior ownership.
This lawsuit may not be a stunt, but it's gonna fail, as it should.
2
"On Wednesday, Ms. Lanier’s mother, Tamara, 54, filed a lawsuit."
Hopefully, Ms. Lanier will prevail in her lawsuit. It is abhorent that Blacks were the victims of slavery and its discriminating legacy. It is worse that the naysayers believe that the descendants of slaves -should not receive any recompense for this unconstitutional cage.
For the role they played in oppression, universities around the world are giving reparations. As other groups have and continue to monetarily benefit from mistreatment, so should African Americans. This is stolen wealth. My prayers are with Ms. Lanier.
12
Who would own the pictures? Apparently the family would certainly show their chronology?
With all the discussions here it was very exciting to read.
But apparently the family will sell the pictures ...
5
Harvard.
For both legal reasons and historical proof.
Copies for all the descendants.
6
I agree with Bernstein. The original photos belong in a public repository (library or archive) that can preserve them in perpetuity. The terrible circumstances in which they were taken are also part of its history, which these repositories are best able to communicate to the public. The $40 price tag on a book in which these images appear is a very small price to pay to, for instance, help offset the cost associated with long-term preservation of the photographs.
Also its become standard practice, in at least non-profit museums, not to charge each other image reproduction fees when an image of an object is reproduced in a museum publication; reason being that image is being reproduced in an educational/scholarly publication. These museum publications usually have very small print runs — in the tens of thousands, at most. Fortunes are not made in the sale and distribution of these types of publications.
I would, however, find it ethically distasteful if the images referenced in the article where licensed for commercial, for-profit use.
12
Kudos to Ms. Lanier for definitively finding her ancestors. The oral history of her Grandmothers is outstanding.
I think that Harvard University should give the photographs of her ancestors to Tamara Lanier. This would be the exemplary and just thing to do, and Harvard could avoid not only the lawsuit, but also looking bad to future generations.
Since Tamara Lanier's ancestors were the photographic subjects of early ethnographer and paleontologist Louis Agassiz, who did not ask for their permission, what is really remarkable is that Tamara finds them about four generations later.
How many Americans have oral history this far back?
To those who find it reprehensible that Tamara Lanier might plan to license the images of her ancestors for money, look at it this way, Renty and Delia finally receive back what was stolen from them: their future, and their descendant, Tamara; and a vital metaphor for payment owed to them.
Look how many commenters here have a level of comprehension that remains stuck with Agassiz's racist assumptions in 1850; for example, those who are unwilling to acknowledge Tamara's finding ancestors whom she already knew about; ancestors who had an identity known and remembered by her family.
After all, I think Americans are a people who have mostly forgotten their ancestors. Little did Agassiz realize that the slaves from Africa whom he photographed would be remembered three or four generations later.
21
I’m on the side of Mrs. Lanier. To profit off of severe injustice is painful to see. If colleges did not make money using these images I’d feel different.
Good, perceptive storytelling NYT.
9
@The 1%
Storytelling it most certainly is in this case.
1
"They said they were offended to see the speakers positioned under a huge projection of Renty’s face."
I am not of the family that see the projection of Renty's face as offensive.
I see the photo as emblematic of strength. I see a face full of passion and dignity. I see a face that is staring down a racist. I see a face that above a strong body spawned dependents of noble Africans, first ranking in the peoples who have never caved in and who still demand freedom (in Swahili, one the Congo's languages "uhuru").
12
Photographs belong to the photographer unless they were a work for hire. And the photographer has a right to donate those photographs to an archives or museum. Full stop.
27
Potographer must always obtain consent when identifiable people are photographed
5
The subject didn't (couldn't) freely consent to the portrait or to have their image commercialized.
6
@Me
Unless of course the pictures were taken without permission in a coercive environment. Hmm, do you think slavery might be classified as coercive?
8
This is a common story among colonizers throughout the world gathering precious cultural and historic objects, essentially stealing them and housing them in their museums for view and profit and study and then never returning them. This reminds of the book "Give Me My Father's Body Back," by Kenn Harper, which tells the story of Minik, an Inuit boy who was left in the care of the American Museum of Natural History in New York and abandoned by the renowned Robert E. Peary.
14
Well, she’d have to also talk to the descendants of the photographer.
14
Why should you own them? All you did was be descended from the people in the photos, who probably have lots of descendants. Harvard stored and maintained the photos for decades.
25
The Copyright law, pre-pre-Digital Millennial Copyright act, was absolutely clear: photos and their reproduction rights belonged either to the photographer or the person who contracted for them. (daguerreotypes were made as direct positives anyway)
The subject of a photo only gained rights if the subject paid for then.
And if they exist in print, they long ago fell into public domain in terms of rights to reprint.
The only claim another could make is if they were stolen from the complainant.
Our Constitution says clearly a law cannot be made after an act and change matters like ownership of an image or declaring slavery illegal with claims for back-wages or ordering photos to be turned over to people who can miraculously prove the subject’s inheritor.
European-American slavery was never ethically or morally acceptable - to me
But there is no way the descendants of slaves are entitled to restitution. Unfortunately, no crime was committed against the slave, and there is no way to prove an image is that of someone’s great-whatever-grandparents.
This isn’t a case where the genetically traceable Jefferson brothers were caught with their pants down 200 years after their legal rape - and their light-skinned descendants decided to do something honoring their darker-skinned cousins.
Nor is this the WW II Japanese internees still alive collecting a pittance of what was stolen from them.
The same law barring modern discrimination bars claims- let’s work for a fairer future.
41
So few people agreeing with what is undoubtedly a correct statement of the law. Depressing.
1
I believe the argument can be made that the picture should be licensed under a creative commons license.
The atrocities of slavery should never ever be forgotten, the very few pictures of these terrible times help us understand and not to forget. By seeing the faces instead of numbers, tears instead of maps, we can never forget that these were human beings that were treated like nobody should ever be treated again. I believe that the importance these picture have for our entire society, shouldn't be discredited. By taking them out of the public eye, out of the museum, we risk to forget about them, to loose them. The pictures should stay inside a museum, where visitors can come and learn about it. I hope this lawsuit results in the discussion of which museum this should be and of the legitimacy of an anthropological museum in 2019.
Also, I am asking myself if this is tied to the medium of the photograph. Should any other historical artefact that describes Renty, like text for example, be given to Lanier family?
32
Seems pretty clear that a slave did not consent to be photographed, any more than a slave gave consent to be enslaved.
If a descendent can credibly support their family connection, then they - along with all other reasonably verified descendents - should become the rightful owners of the original images that were taken in a private suffice without consent.
Proving the facts might be tricky, but the inheritance question seems fairly straightforward.
16
It's actions like this that clearly demonstrate how bad things have really gotten to in this country. The perception of what kind of a future we might have is so bleak and empty that we've decided that the only future we have is to live in the past, pursuing things that are empty and meaningless except to an extremely small slice of society.
17
On the other hand, history is usually told by the victors, not the victims. Clearly we all need to understand the victims stories so that injustice itself is understood.
6
@The 1%
And the vanquished are always victims? No. There are plenty of victims amongst the victors. But yes, that is a problem with history period. Interesting you mention this as I'm watching a PBS POV show. Not sure what it's called but it's about a family who video'd the last 10 years of Grandmother's life.
The family makes a kind of "museum" of everything, the video, her belonging's etc. One part they talk to the conservator of a Rockefeller home that's a museum. He brings up the point about a problem they, the conservators and by default all who "write history, have. By selecting something to preserve but not something else they preserve only part of history. Meaning it's reality.
Oh, come on.
Photo-journalists have been taking pictures of people -- dead, alive, dancing, kissing on Broadway, hoisting flags, in hospital, face down on the roadside -- for as long as there have been cameras.
No, heirs do not own these photographs. The photographers do, or the museums or collections where they're preserved. And oftentimes the publications in which they appeared own them.
A new class of victim: those whose ancestors were photographed.
This from a liberal-leaning voter.
58
@B. This was not taken by a photo journalist for the public good but rather by a scholar trying to prove a point. The lawsuit, regardless of the merits, brings up interesting questions about enslaved people in the Americas and what rights did they have. Did an enslaved person in the U.S. have any right to refuse such a picture and usage? Was the usage explained to them? Or, was this exploitation for the gain of the scholar alone? And then, what to do about said photographs more than a hundred years later with universities having passed policies and ethical rules to prevent exploitation of people by scholars. Would this pass an IRB review today?
8
@B.
The have also been tasked with the responsibility of making sure their subjects consent to being photographed.
3
@B.
how very sad this all is. it is as if the people taken into slavery were further diminished by being forced into being some specimen for a study.
3
This lawsuit is the least of the litigious nonsense it potentially opens up. Just how many "direct descendants" of those photographed 170 years ago get to fight over the rights, today, even if they collectively establish a claim over Harvard? Depending on the length of generations and family size, it's relatively easy to arrive at over 1000 "direct descendants" alive today. Do we need to revive archaic laws of primogeniture, in gender-neutral form, to settle descendants' potential dispute? And photos of slaves are the least of it. What about the descendants of the families of the corpses Alexander Gardner dragged about unceremoniously for his Civil War photographs, as well as every portrait and crowd scene ever photographed before personal rights to one's own image were imagined? Should we use DNA analysis to establish rights to archeological discoveries? The living having inextinguishable rights over "their" dead is about as absurd as "dead hand" wills with inextinguishable rights over the living.
48
Analogous genealogical research strongly suggests that, to date, Renty has a total of approximately 40 direct descendants (living and deceased). Twenty of these are probably alive today. Fifteen are probably 18 years of age or older.
Richard J. Cellini
Founder & Secretary
The Georgetown Memory Project
25
@Cantabrigian: Does "analogous genealogical research" mean you have no data on Renty's family?
1
Very difficult situations we face as we attempt to right the wrongs of the past. Ms. Lanier might be able to claim ownership of the photos, but she would at best have a small percentage of said ownership given the likelihood that Renty and Delia have more descendants than just Ms. Lanier--probably many more descendants. When it comes to land ownership situations someone like Ms. Lanier might recover her interest only after proving what her percentage of ownership was in the property. Her recovery could be granted in a judgment, but the remaining percentages would be deposited into the registry of the court.
6
“That photograph is like a hostage photograph,” Mr. Coates said of Renty’s image. “This is an enslaved black man with no choice being forced to participate in white supremacist propaganda — that’s what that photograph was taken for.”
Agreed. So why then did she put them on a canvas tote? Uh, kind of disrespectful, don't you think?
34
This strikes me as comparable to the way Native Americans have responded to discoveries of their ancestors' bones and artifacts. The trend has been to restore archeological items to the tribe with the greatest proof of claim, but not always. At Mammoth Cave National Park, for decades the bones of one long-deceased Native American were on display within the cave. Out of respect, eventually the National Park Service placed the remains elsewhere. With this in mind, I do think some sort of amends to the descendents of slavery should be made.
5
If the bones had legitimate value to archeologists, this was a crime - taken to a logical extreme, each of us will have to travel the whole globe to learn about other cultures.
And returning of artifacts is worse - why should someone wishing to see works by aboriginal southwestern residents of North America have to search out artifacts lawfully obtained.
Should we each have to go to Rome to see sculpture in the NY Metropolitan Museum of Art?
Holocaust survivors cannot even win back artwork they can prove was legally there when illegally stolen during WW II.
In terms of human remains being claimed from researchers, we are reaching the point where the claimants are genetically different people than those they claim. You or I may be closer to those who, assuming after-life existence, would get to see their earthly remains buried by the children of fellow aboriginal peoples who were their enemies, instead of helping tell others of their lives.
I know what I’d prefer - and it isn’t handing my bones and possessions to those who have would profane them.
All aboriginal human residents of the continent are not from one big peaceful family.
The issue here seems to be consent. The subjects in the photos were property, themselves, at the time and were not asked for their consent to participate in this study. The fact that it was part of a study is equally relevant. Participation in research, especially today, requires informed consent from the participants — even if only from a purely ethical standpoint, if perhaps not a legal one. Signing formal consent is likely a relatively recent development in research, but aside from that the subjects surely signed no paperwork to authorize this photography.
Additionally, they weren’t being photographed by the military or by photojournalists, which would likely change the rights the subjects had with respect to the images produced. They were being photographed by a private university who, again, asked no permission from the humans they were conscripting to participate in their study.
These photos have historic, cultural, sociological, and monetary value and too often in this country’s history, black Americans have been exploited for gains that none of them benefit from themselves. It feels right to see the people who have suffered the consequences of these injustices rippling across the ages actually catch a break in their favor.
8
Legally, I don't think she has much of a case, and the genealogical research is seriously weak. If she can make a credible case for ancestry, then Harvard should give the original daguerreotype to her and retain legal rights to the images.
She should then make the original part of her family's private history archive. I emphasize the term "private."
7
Why should she keep the images private but Harvard maintain the rights? Why would it be justified for Harvard to profit but not the subject's descendant?
2
We have to invest in social policies that address the inequities still reverberating today as a result of this country’s evil pact with slavery.
The beautification of the state of enslaved persons, victims of poverty and war through photography is also part of that art form’s complicated ethical past and present as well.
Any article that opens a dialogue up that addresses reparations and inequality should be welcome.
3
Under modern copyright law, the photographer owns the copyright, not the subject. Copyright law 170 or so years ago likely was similar for this then-new expressive medium.
Nevertheless, the copyright should have expired a long time ago and the image should be in the public domain. If Harvard has been reaping licensing fees for selling access to this photograph, they may not want a court case that examines too closely the copyright and ownership status of this photo.
18
I'm leery of this lawsuit. Full disclosure, I am a white - that is, unmistakably white - male. I realize that might make (and should make) most of you take a grain of salt about what I have to say here, but...
Let's put this into a blood quantum perspective. Given a 30-year generation, Ms. Lanier is 5 generations removed from Papa Renty. She likely shares about 3% of the DNA that he did, as do she and her 31 other third-great grandparents. This isn't necessarily the problem; the problem is (this is, again, also a rough estimate based on a rather cursory understanding of genealogy stats) Ms. Lanier around 1500 other first-through-fourth cousins also descended from Papa Renty. Every slave photograph's royalties - were this to work out - should reasonably be divided among living descendents. The physical daguerreotype I can't even begin to imagine the headache involved Symbolically, I can see the justification here. Dollars and cents-wise, I don't know what this can or will accomplish.
Likewise, according to a 23andme test and some genealogy and despite my appearance I am (only?) 98.4% white, and 0.4% of the converse (a sixth great-grandparent, as I understand) is very likely to have been a West African slave. There may be around 200,000 of my distant cousins descended from that same person. Given the breadth of the slave trade, how many other unmistakably uninjured (but which I mean... white) Americans can claim ancestry and property from a slave like Papa Renty?
13
Harvard does not own the pictures because the photographer never owned them because he took them without permission of the subjects in a formal setting (a studio). He did not take the photos in a public place, as some commenters have said like the famous V-Day photo. Renty's photo is not an outdoors, public photo of him walking on the street, etc., but the very first sentence of the article states that he was stripped of his top and photographed like a mugshot, obviously in a studio. All without his consent. When can any photographer claim that pictures taken under those circumstances belong to the photographer?
9
So do mug shots at police precincts belong to the criminal snd/or those in the lineup?
I think the photos should be housed in a museum. The family should be acknowledged and compensated. However, I find it disturbing that they would be used for commercial purposes. Images of a slave, photographed like a beast of burden against his will. How many times have these people sold since their photos were rediscovered?
5
It’s very interesting, and I would say the families should have ownership because, as slaves, the photographed subjects would not have consented to being photographed, to my knowledge. The photographs should be turned over, and perhaps a mutual project would result that would be beneficial to both parties and richly rewarding in documenting the living history of America.
4
Wouldn’t the concept of public domain apply, that the photos belong to everyone, in the name of humanity and the greater good?
8
Hmmm, actually the photographer’s descendants, if any, have more standing than she.
16
I have some sympathy with Tamara Lanier.
Pictures of Holocaust deportees and refugees via Belgium are available online at
https://www.kazernedossin.eu/EN/Museumsite/Documentatiecentrum/Digitale-Beeldbank
As I understand it the organisation did not ask for approval by next-of-kin to post pictures (which would admittedly have been an impossible task).
This means one can have the picture of oneself, one's parent or grandparent appear on the web without one's approval. I do find this troubling, and since I find this troubling, I understand the position of Ms. Lanier.
5
Possibly Ms. Lanier should thank Harvard University for preserving the photographs of her ancestors, if indeed they are her ancestors. In many (most?) families, with the passing of generations, photographs and other family documents are simply tossed out.
While the photographs may/might be her ancestors, images that are of this age are a record of humanity--just as are portraits by artists of the past--and should be preserved for future generations and not just for Ms. Lanier.
Step into an antique shop and see how many anonymous family photographs are on sale for 25 cents or a dollar. Be thankful Ms. Lanier that the photographs were cared for under ideal conditions and are available for you to view.
23
Legal standing aside, these family members (if they are indeed descendants) must have some say in and benefit from the use of the images. How awful it must be to see a relative's forced image - one taken to help establish that Africans are inferior to whites - splashed on university materials. From a moral perspective, if the relation can be found, I expect Harvard must provide Ms. Lanier some say and benefit from a moral perspective. And from a practical one, the backlash if they don't would be harsh.
44
@Emily Yes, that backlash would be very harsh, especially given the trashing that the Schools in the Ivy League are taking for their shenanigans in admission practices. I think that the wisest path for them to take is to amicably resolve this matter during the discovery proceedings in the lawsuit. Harvard cannot win, only lose.
8
If the descendants ask for the pictures, they should be given them. Weighing and balancing the descendants interests vs Harvard- the family should have them. What is Harvard's need? I don't think you should try to compare the feelings of holocaust victims to the descendants of slaves - We, as Jews, wants the world to know that it will never happen again. Whereas, these descendants want the only pictures they have of their forefathers. Harvard has no need
10
If this doesn't prove that there are too many lawyers, I don't know what will.
As far as I know, Massachusetts doesn't sanction lawyers for filing frivolous claims (or much of anything else), but there is a first time for everything, and this would be a good place to begin.
26
My relatives died naked in Nazi concentration camps less than 100 years ago. Never occurred to me that any photos of them should be returned to me.
107
@Judeb If you found out a rich institution was MAKING MONEY off of the images, then might it occur to you?
10
@Jake How much money do you think they are making? The photos are in a non-profit museum, where they are being stored in such a way that they are being preserved for future generations.
Slavery is to be abhorred, and these pictures and their highlight that in a way that words alone cannot. They bear powerful witness.
26
@Kristen Hopefully we will find out what they were making off of them. Obviously enough not to release control over them and continue charging a licensing fee. I mean, are we fully wrapping our minds around this? These scumbags sponsored photographs of naked slaves to be taken for the purpose of proving black racial inferiority, and now won't release control of them because... why? It's just such a no brainer -- you give them to an unaffiliated museum, release control over the copy-write, and move on from their complicity. That they've dug in their heels against this woman, knowing at the very least the origin of the photographs, is really astonishing.
4
What about the victims of the Holocaust whose photos are on display in the Holocaust Museum in D.C. and dozens of other Holocaust museums around the world? Can their descendants and relatives claim ownership of those photos and ask that they be returned or not displayed?
I am sure that not all of those victims signed photographic release forms when the pictures were taken.
45
What if Nazis (the legitimate government at the time) had taken photos of certain populations to prove they were inferior? What would our reaction be if a descendent discovered her relative’s photo in a Berlin museum?
This is cut and dried to me. If she is the descendent she gets the photos, period. If she was not then there are black colleges and foundations that could benefit from having them.
Slavery was repugnant. An abomination, a moral travesty. No one should profit one dime, neither academically nor culturally nor in ANY way if it hurts a single descendent of slaves.
And YES, massive reparations, we give until it hurts. There are simply no words and no apologies that suffice for what we have done. This country was built on the backs of our African American brothers and sisters and it is way past time we sacrificed something for them.
31
@A. Simon "This is cut and dried to me. If she is the descendent she gets the photos, period. If she was not then there are black colleges and foundations that could benefit from having them."
Not sure how anyone can argue with this! And yet...
4
@A. Simon Are you aware that slavery in the US ended in 1865- more than 100 years ago? Since then, there have been programs implemented that specifically advantage African Americans, and exclude whites. You are free to "give until it hurts", but you are not free to force others to.
16
@A. Simon: you sir, are free to give anything you want to "reparations" for the distant ancestors of slaves -- over 154 years ago now -- but leave me out of it.
I never owned a slave, no ancestor of mine ever owned a slave -- no ancestor of mine ever set foot in the US until long after the abolition of slavery -- no ancestor of mine lived in the US South.
I will not pay one dime for reparations and if you try…..you will start an upheaval that I think you will regret very much. One that will make the Presidency of Trump look like Romper Room.
1
I’m very curious to know if the slave owners were compensated by Harvard for the use of the slaves in this “scientific” study.
9
Pay her!
2
Not a lawyer, haven't played one on TV
~169 years later
It would seem to me she lacks standing.
39
Putting slaves pictures on tote bags, What taste, what refinement, what sensitivity. I do not care if it is legal or not,I hope she gets those pictures and an apology from Harvard for supporting slavery and currently using slavery for book covers and bags and can t shirts and hand towels be far behind?
10
@cheerful dramatist However the article says that she has not ruled out licensing the photos herself which I find rather repugnant since he is using her ancester's picture without their consent for monetary gain.
Sorry, this has a strong odor of someone trying to game the system in order to line her own pocket.
That said, I agree that flaunting the photos by the college is in very poor taste.
14
I thought there was a conference on slavery and the tote came out of that. It would not be my kind of tote bag, but there we are.
1
@Kathy I am not black so I do not feel right judging anyone who is descended from slaves about how they deal with their ancestors.
The slaves made many whites very rich with their labor, were mostly terribly treated and never rewarded for their hard, hard and thankless labor and loss of freedom.
If this woman wants to license these photos for things you may not approve of and line her pockets, well God Bless.
Blacks are still treated badly in this country. All the young blacks killed needlessly by police. And all the white people calling the police on things like a black boy mowing the grass of a white woman's home, on a little black girl selling water or people barbecuing in the park or that white police woman shooting and killing a black man in his own apartment because she somehow thought it was her apartment, though that story has a lot of holes in it.
It is still not safe to be black in this country. And the horrible truth is that all the domestic terrorist acts and mass killings in the last year were by white supremacists who hate blacks and Jews. All the racism, the Southern strategy. A racist president
I wish what ever this woman wants to do with those pictures she can do. Of course the bastion of elite white male privilege, Harvard will most likely win out. And I am sure it will be nice and legal with a bow round it, but hey how much have we stolen from the black slaves and the Indians and it still affects their relatives today. Shameful.
5
It’s a simple answer. The photos are owned by the person who took the photo, not the subject of the photo.
Today I took a photo of a Hawaiian monument. I own this photo, not the native peoples of Hawaii who can trace their lineage back to the creation of the monument.
You shouldn’t use slavery as a justification of subverting normal laws. Two wrongs don’t make a right. This is the fundamental problem with social justice.
103
It’s frustrating to have to share a country with people who would consider this comment logical.
15
It's frustrating to share this country with people who don't understand that the above comment is an exactly-accurate comment on settled law.
Photographers and their heirs and assigns own the photographs they create. Not the subjects of those photographs. Period.
Subjects of photographs have "publicity rights" that govern the use of such photographs for certain commercial purposes. They have no legal interest in the use of photographs of themselves for editorial, artistic, educational, etc. purposes.
31
It's not "subverting normal laws". The situation is legally unprecedented. Read the article.
6
This is just embarrassing.
While I certainly agree that the images aren't the finest parts of history, there's no rational argument that the claimant has a property right in them.
She didn't take the pictures, she didn't commission them, they were never in her possession, they weren't stolen from her, they weren't wrongly taken from her. Net result = zero property rights.
I'm always disappointed when the New York Times, prints blather like, "Benjamin Crump, one of Ms. Lanier’s lawyers, said. 'Renty’s descendants may be the first descendants of slave ancestors to be able to get their property rights.'” when, in reality, that will never happen.
No judge in the US would even think of granting the claimant a property right to materials where actual, true ownership, rights, and possession are simply self-evident.
Perhaps its even worse that the law professor quoted says something stupid: “If she’s a descendant, then I would stand for her,” Professor Murray said of Ms. Lanier. That's nice that she would stand with her, but that's not a legal argument. There simply isn't one. Even the comment that the images were "taken by force tantamount to robbery", is silly. At the time it was not, and even if it were, the claimant doesn't end up with a property right, regardless.
At least Dr. Hecimovich seems rational. Very hard to make a slam-dunk case indeed, since the "case" will be dismissed on the motion for summary judgment.
Because she doesn't have one.
69
@Rush So if you were forced by two random men on the street to strip naked and pose for photographs so that the men could then use them for promotional materials... you would have no problem ceding ownership of the pictures to these men?
19
@Jake Being forced to strip is illegal. There are laws making it illegal to profit from crimes. Slavery was legal at the time.
Also, something that happened to an individual is NOT the same thing as something that happened to an individual's distant relatives or ancestors.
12
@Jake so every victim of the Holocaust whose image is in a history book is now entitled to compensation for emotional distress?
Secondly, do you believe this woman can care and preserve delicate daguerreotypes if she clearly has put zero thought in what she will do with them?
9
Seems like this could be easily solved by giving her a copy of the photos. This way they could do the same for other descendants that would like the same thing.
No issue here and not headline news unless it sets a legal precedent.
We can’t even stop paparazzi from stalking celebrities. No need to open this can of worms.
15
Maybe we should all go out and research past oppression for our long lost relatives, and sue on their behalf? We can all be rich RICH I tell ya!
28
Once I saw that Benjamin Crump was involved as a lawyer, I immediately believed his counter-parties position 1000%.
17
@Patrick Turner
I looked the guy up. A specialist in grievance law.
1
So do the descendants of Mona Lisa also have a claim?
37
We don't own our ancestors photos.
Imagine if we did. No reporting of the Holocaust, without approval from every surviving descendant. No reporting on the WWII prisoner of war camps (where my grandfather would be pictured) without paying off every single stoHelit. They too could not consent nor deny the photos - but these are an important part of history.
This is a nonsense suit. There's no reason to think I own the image of my grandpa.
87
Nothing like actual chemical silver salts to get genuine tonal light/shadow separations and definitions. Take that picture with an iPhone, hah!
7
There may be some strong, non-legal arguments for why Harvard shouldn't restrict access to the photos or profit from them. But there's no compelling case for transferring control of these photos to a possible descendant of the subjects of the photos.
Harvard would be wise to donate these photos to a national archive. Or it could designate that all future licensing fee would be donated to an appropriate cause.
12
That would be a great idea, except that Harvard already *is* a national archive.
2
There are literally hundreds of thousands of pictures like these in almost any museum or university who researched ethnographic studies across the world as soon as the daguerreotype camera was invented. There are also paintings, sketches, and many other types of portraiture made in or before 1850.
The true ownership of those images lies in the laws in effect at that time.
Presently, images are copyrighted until 70 years after a person dies and then the image goes into the public domain. Any attorney worth his salt should know this basic law concerning images.
Summary: These images belong neither to Harvard or Ms. Lanier. They are in the public domain and that's where they will stay forever.
22
@Texexnv People keep saying they're public domain. They aren't -- if they were, there would be no suit. Harvard maintains control over the images and charges a legit licensing fee for their usage. Why aren't they in the public domain? Because they were "found" in a museum in 1977 and returned to Harvard -- so they'll continue to control them for a good long time.
2
@Jake
Fair use is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement.
Copyright Act of 1976, 17 U.S.C. § 107
Q.e.d.
3
@Texexnv So you're saying Harvard has been licensing out these images just to see if people are suckers enough to pay, or is there a distinction I'm missing here?
I have seen the picture before of the human being with only a first name and enslaved in the 19th century. Since I don't know the name he was given when he was taken from Africa, I at least want to take care how I refer to this gentleman. I certainly believe that regardless of how the legal case ends, that our brother under the skin is treated with great respect and above all, compassion. I prefer that this photo leave Harvard regardless of the legal success of the family claiming their ancestor. A suggested possible outcome may include the family and Harvard agreeing to donate the photos to the US Museum of Slavery. Of course, if the family is successful in their claim, no one should stand in their way if they prefer to take the photos home.
13
whatever the copyright laws provide for should be the extent of any claim.
12
@john Even if those laws rely on the legitimacy of slavery and the slave owner's right to control their "property" as they see fit?
The underlying motive for the litigation: an attorney figured out that filing a civil complaint would prompt a out of court of settlement and the attorney will receive 40% of it as a f
21
The premise here is that the photograph of a slave belongs to the slave and his or her family. That breaks from legal norms, that grant ownership to the photographer.
Virtually every breaking news photograph that has won the Pulitzer Prize depicts a victim of cruelty. A Pulitzer is worth a lot to the recipient. The prestige translates into thousands of dollars. If the family wins this lawsuit, virtually all Pulitzer photographers owe the proceeds to their subjects.
And what about reporters who write about travesties of justice, like mass shootings and sexual abuse. They are painting a verbal picture. The lawyers are arguing that victims own the depictions of their suffering. It seems to me that that could deprive the media of the fruits of their labor and could cost them millions of dollars.
21
@michjas Photographers should owe the money to the subject. It's sick that people think they can take pictures of people and profiteer off their image. Photographers are some of the rudest people around.
2
I swear people in America have way too much time on their hands. No photographer who has an idea and tskes a picture has an obligation to give that data to the subject. Attribution should be applied if agreed upon, but giving a public or personal record to a descendant is ludicrously myopic. Plus, for some reason I doubt she has neither the knowledge, desire, capital nor equipment to properly care for an item like this. I would bet we would see her on Antiques Roadroad Show the moment she received the items.
21
The image of Renty is powerful. Look in those eyes - such resilience, such power. To have survived what he went through is admirable, and to have even thrived enough to have descendants living today is amazing. I would proud to have such a person in my lineage.
9
Yes, pride is one thing -- a frivolous suit from a self-proclaimed victim another thing entirely.
8
If it can be shown someone is related to a person in a photo or that an object was owned by one's ancestor, the person has a right to that image or object.
In that case, if desired, let the person take ownership of the image or object, and let the teaching institution have high quality copy, plus access to the original for research for some specified period.
In addition, descendants may have family history to share with research institutions. If so, take it down and keep it with relevant objects - for generations to see, learn, and understand.
If the relationship cannot be shown with reasonable certainty, the institution should be permitted to keep the image or object.
Why? We all *own* these images and objects: to take them out of the public sphere is to take away the story of what was done.
3
@M In this case the "institution" involved charges licensing fees for use of the images. Is that the "public sphere" you're referring to?
1
I have to disagree. I can show that I’m descended from British royalty, including Henry II and Eleanor of Acquitaine. If I tried to take possession of any artifacts that belonged to them I’d be laughed at...as well I should be.
That being said, there’s no question that Harvard continuing to profit from these images is problematic. But what is the answer? Should Harvard track down all of Renty’s descendants and pay each a share of profits for their $40 book? Should they hold a drawing for which descendant should take possession of the images? I feel for Ms. Lanier, but this lawsuit is nonsensical.
14
@M
Really? Eliminate all history book photos because of the pictures of prisoners and soldiers whose families could object? Why would I own the image of someone just because I'm related?
19
As a photographer this is such a difficult discussion. Image rights resting with the creator of the images is what my whole field is based on. But sometimes what is legally right and what is morally right is not the same.
It's always difficult when you try to judge the past by today's standards but I'm sure the subjects didn't volunteer to be photographed. They were told to do it, they did it. They had no agency in the matter. In modern times they would have had to sign a model release allowing the use of their likeness for any commercial purposes. Editorial usage is different but lets not get into that. But they were not willfully giving their permission for the use of their image.
However I do think that Harvard, who appears to own the images that were shot by the photographer will come out on top... probably pretty easily. Image rights tend to rest with the creator and I think Miss Lanier will have a difficult claim to make that she is definitely the descendant of the subjects.
If you're Harvard though this is not something you really want to come out on top of. I would love to see them fight for their ownership. I think legally it would be a dangerous precedent to set for photographers if the plaintiffs won this case. But then I would love to see them negotiate with the family so that all proceeds form the images go to a charity, or perhaps the actual plates are given on an indefinite loan to the family. Some kind of compromise needs to be reached.
23
@Craig W.
Harvard is a non-profit institution so technically the proceeds are already going to a charity. And those proceeds go towards the continued preservation and study of artifacts like these photos. And what in the world is the family going to do with the actual plates? You know these things need special handing and storage that only specially equipped institutions, such as Harvard's Peabody Museum, can provide. There is no compromise to be reached here. She simply has no standing.
If a photo suddenly surfaced of my Grandma arriving at Ellis Island I would certainly be dismayed if I felt it was being used disrespectfully, but I wouldn't feel as though I had any special rights to the photo. And I actually knew Grandma.
10
However unjust the historical dynamic may be in this situation, it would set an unfortunate precedent.
The archives that preserve our shared past would be obliterated. Descendants of anyone appearing in an old photo could appear to reclaim it.
Let's say someone wants to put together an illustrated biography on Trump 100 years from now. Too bad: Donald V doesn't want it and has seized all unflattering photos of the president.
These images should stay in the public domain. Harvard may be the caretaker of the originals, but in a higher sense, they don't "belong" to Harvard or any individual. They belong to everyone, enabling the public to learn about (and learn from) this chapter in history.
37
Good grief, can’t you recognize a difference between a picture of a public official taken while said official is performing the duties of their public office and the theft and appropriation of a private individuals image for monetary purposes.
Your analogy is completely inapplicable to this scenario.
5
@Wendell McGee I think if Donald Trump were to be help captive then stripped naked and forced to pose for photographs, then yes, 100 years from now his family should have a claim.
And they do "belong" to Harvard, as of now, in the sense that you would need to license the photos if you wanted to use these images. They are not currently public domain because they were "found" in the 1970s and given back to Harvard. A win-win for America's richest University.
1
@Will
And the situation you describe is not what this story is about either.
2
Interesting to me as a genealogist. I have access to family photos from as early as 1880. I’m so grateful that they were saved and shared. They would not exist now but for the efforts of individuals of multiple generations.
Renty could have well over a thousand descendants now. Do they all have an equal claim?
83
@Kristen Yes, they all have an equal claim. You know who has absolutely no legal (or moral!) claim to these photographs? Harvard University.
Knowing that Ms. Lanier "does not rule out licensing the images" sort of changed my mind about the whole thing. I suspect there's more here than just upset that her ancestors' images were used without permission. Money always seems to come creeping in somewhere. Too bad.
114
@Ms. Pea I suspect a lawyer took this case on contingency in hopes that stories like this would shame Harvard into offering Ms. Lanier an out-of-court settlement.
1
So many other comments are pure whataboutism. This isn’t about other groups being discriminated against, or whether celebrities or paparazzi own their photographs. This is about a set of daguerreotypes which were commissioned by a gentleman, who was a Harvard professor at the time, for the purpose of proving his racist theory that blacks were inferior to whites.
If you’ll recall from the article, Mr. Louis Agassiz, a rival of Charles Darwin, believed that blacks and whites ‘descended from different origins.’ The daguerreotypes were to be used as anatomical specimens in researching his theory, which was later discredited.
In this particular case only, and by ‘case’ I mean the entire set of fifteen images, the correct and moral thing for Harvard to do would be to attempt a good-faith effort to track down the descendants of those images and gift them to those people. They out to also refrain from using them in the future; for example in any reprints of that $40 Anthropology book or as the program cover for seminars or lectures.
Legalities, reparations, the ownership of photographs and artifacts, whether it is in good taste to print these photos on a tote bag, and all other such et ceteras can be worked out between other parties in other venues. But since the very raison d’être of these daguerreotypes was to prove the subjects’ racial inferiority by one of their own faculty members, Harvard has little choice, in my opinion.
14
@Campffire
Whataboutism is appropriate here, where you must consider the precedent being set. What about holocaust pictures - should no history books be possible any longer? This is not about one photo. And I don't think decendants have an ownership right to their ancestors photos.
14
@Campffire There could be thousands of claimants. How do you set a test for who is related to people in ancient photos? How do you establish each of the claims and who is responsible for evaluating them?
4
They don't have any legal right to the photos. A moral right arguably, but not a legal one.
35
@JY
They have a right to express an opinion about the photos and how they are used. Actually we all have a right to express an opinion about the photos and how they are used. But there is no legal or moral right to ownership of the photos.
3
Photographs are legal property of the owner/photographer, then the photographer's family or other stated legal beneficiary.
20
If permission has been granted or the individual is in a public setting.
@Maggie Presumably, the legal rights were transferred to Harvard at some point. From the article, the accession history is not entirely clear.
What foolishness is this? You don't own things just because your relatives were in them. Descendants of Holocaust victims don't own the photos of their relatives. Descendants of men who died and were photographed in war don't own those photos. This woman just wants attention and the chance to sue big-name Harvard in the name of making it look racist. If she were really interested in these images, she'd be demanding that they were properly labeled.
As long as Harvard acquired what they had legally, that should be that.
185
@Claire
I disagree. Many we should have rights to photos of our relatives who died in the Holocaust, and to receive residuals on any copyrighted materials as reparations for the lives and property stolen from descendants.
2
To all of those questioning who should own all of these images, give some thought to those 1,000's of images of yourself on facebook.
Someday you will be dead - but those images will live on forever.
And, exactly who will be owning them?
Tamara, you have my vote for owning the images of your own family.
Good luck.
7
@rosa
Images on facebook don't have a license transferred - but if I make the image public, my great granddaughter doesn't get to take it away. If they are my property, then they become the property of my estate. If they are someone else's property, that person gets to keep them and do as they like with them.
2
reading through these comments . . . we have a lot of work to do in this country in coming to terms with our history. A lot.
34
@kathryn
I came to terms with it a very long time ago when I studied American and world history.
6
Can a photographer use your image to produce a product for sale without you permission?
2
@Mary
Yes, people out in public can be photographed.
Many celebrities wish the paparazzi could not take them though but that does not seem to matter.
10
@Mary
No. See Presley, Elvis, estate of.
1
@Mary For commercial purposes, no. If I see you in a public space and take a picture of you eating Ben and Jerry's Ice Cream, I would need your permission in a model release before I could sell it to Ben and Jerrys for an advertisement.
But if I work for a newspaper or editorial venture and we're doing a story about Ben and Jerrys then I can publish the photo without your consent. I believe textbooks fall under these guidelines as well.
12
https://copyright.cornell.edu/publicdomain
The law doesn't judge who or what's right, because of history, only what the laws are, and that those laws are applied equally to all.
No case.
16
I certainly feel for Ms. Lanier and it seems to my non-legal mind that she has some claim to the photo. But this is an interesting question - what about others who were photographed without their permission (concentration camp survivors come to mind)? At what point do these photographs become part of the public domain?
3
I don't understand why this article includes so little information about the actual legal issues here. There is no basis for a copyright claim here: no court has ever awarded copyright to the subject of a photograph because the image was made without consent. Period. And even if they did, these photos have long since passed into the public domain. The only plausible claim here would be for rights of publicity, which can be inherited--but only for 20 to 100 years after death. And even if Ms. Lanier were able to show she inherited those rights, it would not give her "ownership" of the photo. It would only give her control over the commercial exploitation of Mr. Renty's image. She could prevent his image being used to sell shopping bags. She could not prevent his image being used in textbooks, presentations, newspapers, etc.
86
She has not ruled out licensing the images or to arrange a tour across America. Oh the irony of it all.
23
Sadly, racism is still pervasive though slavery rightfully abolished. If there is anything reprehenisble is having one man own another and feeling superior because of their skin color. Regarding blacks as inferiors is wrong not to mention how barbarous slavery is.. If those people sue Harvard University they are not only claiming justice for degradation of forbearers, they inadvertently reveal how shamefully and unjustly blacks were treated for which they deserve compensation for while exposing how an intellectual institute took part in mistreating slaves because of racism..
5
Don't the images belong to the photographer? And if he/she left them to a relative via inheritance, and that person chose to donate them to a university, then the university has ownership of the photos.
What about the images taken of the dead bodies and barely alive survivors of the Holocaust? Those images were not taken with the consent of the photographed.
Images taken under heinous circumstances, such as war and slavery, should always be treated with respect by whomever "owns" the images.
8
My mother told me we are descendants of Mona Lisa.
When are they handing it over?
22
@Lawrence LOL! You'd be better off suing for licensing rights to the image. Or the song, for that matter.
4
What of the hundreds (thousands) of pictures of nineteenth century immigrants, holocaust victims, war dead and wounded (both military and civilian)?
If anything such records should be more public than they are so we the descendants of this history, whether perpetrators, victims, or bystanders, can get some idea of the horrors that were.
If there were photos of my ancestors starved in the Irish famine I would feel the exact same way.
7
So, these images were printed on a tote bag? In what way is that a dignified remembrance? I find it in the worst possible taste, to schlep your groceries home in a bag printed with images of one's enslaved ancestors.
14
@Binne
Would it be in better taste to have the image of the slave owner of the tote?
2
It would seem to me that since the photos were commissioned by Louis Agassiz, while in the employ of Harvard, rightfully, they should belong to Harvard. As wrong as slavery was, the two subjects were seen as property, and had no rights to sign a release.
Tom Franzson Brevard NC
10
In the EU, regulations under GDPR prevent the sharing of photos without the subject’s permission. They don’t strip ownership rights of the photographer, but they do require a photographer who is going to share photos—particularly via social media—to get consent. Even in the US, for posed photos like these that would be used in a study, the “models” would need to sign consent forms. Regardless of laws during the era, Harvard would be in the wrong now, and it would seem the moral thing to do would be to determine lineage and offer the photos to all heirs. Or provide a settlement to the heirs as reparation and gain consent for usage.
3
Certainly there is precedent for this case. The Times covered this very issue years ago with the "Ivy Nude Photo Scandal."
THE GREAT IVY LEAGUE NUDE POSTURE PHOTO SCANDAL https://nyti.ms/2986VpA
Indeed our own kids and grandkids may well be sueing Facebook, Google, Apple or us as to who owns the data amd images of us.
5
It is maddening that the Times has not provided a link to the complaint so that readers can consider the original
That said, without having read the complaint, it is hard to see the theory here. Generally speaking, the subject of a photo owns neither the copyright in the photo (assuming that it is a work of authorship)nor the physical copies that are made of photos. The copyright is a form of intellectual property belongs to the photographer (or perhaps to the person that hired the photographer), but that is a right of limited duration: the copyright in 19th Century photos are in the public domain. The physical copies are personal property that passes by sale or inheritance.
I should think that the theory of the lawsuit is predicated on the concept of the right of publicity. which did not exist in the 19th Century: it emerged from a series of court decisions, and in some states legislation, beginning in the 1950's and accelerating from 1970 to 1990 (excellent book about this troubling series of precedents by Jennifer Rothman at Loyola Law School in LA). But the right of publicity does not create ownership of the photo; it only entitles one to object to certain commercial uses.
So it is hard to understand how this lawsuit can succeed. But I withhold judgment until I read he complaint and the parties’ briefs
16
The complaint itself is linked here:
https://www.koskoff.com/content/images/Lanier-v-Harvard-Plaintiff-Complaint.pdf
I suggest that many commenting here would benefit from studying the parallel history of the portraiture of WHITE people, in Europe and America, in the 17th through 19th centuries. Gaining that knowledge would both spare us irrelevant hyperbole--like the suggestion that Ms. Lanier's claim, if granted, could allow "an ancestor of the subject of a Gainsborough portrait" to sue that portrait's current owner (see @ U.N. Owen Hearts Gf) and also illuminate what, to me, is one of the central issues raised by Ms. Lanier's claim: the difference between voluntary, celebratory portraiture and involuntary, demeaning portraiture.
"Gainsborough portraits" and the like were commissioned either by the sitters or the sitters' families, for the purpose of celebrating the sitters and their riches and high worldly status. Only the wealthy and powerful could afford to commission a "Gainsborough portrait." Legal ownership of such portraits, moreover, is virtually never in doubt: other than in exceptional cases (for example, when artworks were illegally seized during the Holocaust), the portraits have ended up where they are today through a process of inheritance and/or sale by the descendants of the sitter.
None of the above can be said about the daguerreotypes now in Harvard's possession.
3
Yes,
It is also a very very beautiful image. You cant help but feel that the photographer has empathy for the subject. In that respect it shows the humanity of both the subject and the photographer. A small step towards emancipation.
2
Would a victory for this woman mean that if I walk down the street and take a photo, the defendant of some person in the photo can claim ownership decades in the future?
5
Would that actually bother you if it were true?
1
As expressive as this claim may be, I find it hard to be legally successful.
I can remember ... thousands ... of similar images. People lined up for trains to concentration camps, or those few who were rescue at the end of WWII? The child running from napalm? JFK in Dallas?
Are the soldiers who placed the flag on Iwo Jima entitled to ownership and a cut of the action for that historical photo, since I doubt they had time to sign a release?
12
Hogwash. Throw this nonsense out immediately. There is zero substance to this case - how does one prove ancestry TO A PHOTOGRAPH?!!
12
So let's get this straight. A Harvard professor commissions photographs of slaves, stripped naked, for the purpose of proving that blacks belong to a different, inferior race. These photographs are then lost and rediscovered in a Harvard museum, thereby keeping them out of the public domain. Harvard then reinvents their origin and uses the photographs (again, taken of naked slaves against their will) to show the horrors of slavery, WHILE IN THE PROCESS licensing them for a hefty fee and putting one of the images on a book that sells for $40.
Now I don't know if this woman can claim her lineage, in large part becomes slaves weren't permitted to keep those kinds of records, but what I do know is HARVARD HAS NO RIGHT, probably legally and DEFINITELY morally, to maintain possession of these troubling historical images.
6
@Jake - Which, of course, is simply wrong.
Of course it does.
8
One can only wonder --
If - instead of African-American slaves - those photos were of half-naked emaciated Jews in the concentration camps - we wouldn't even be having this discussion -- as everybody would be falling over themselves -with righteous indignation - while demanding that the photos be returned to their "Rightful Owners" --
Nobody would be debating the fine points of purchase and copyright law then - would they...?
3
@Howard G
Well I think fair minded people would see it the same way based on many of the comments posted here.
My father had pictures from WW 2 now in my possession. Can one of the descendants of the subjects claim ownership because they are in the photo? I think not.
This is absurd and your comment that if it was another aggrieved group people would see it differently , even more so.
10
@Howard G
The words of Chief Justice Taney (blacks have no rights that whites are bound to respect) continue to resonate within the dominant society.
@Howard G
In all the years with all the photographs, exhibitions and books that featured them has anyone asked for that?
Revenge Porn has already been determined to nullify any "rights" a photographer has to certain, compromising photos of other people. Therefore, precedent of this nature has been set. The dignity of these people has been taken for far too long. If it is her Family, then the pictures ought to be hers.
3
@MaryTheresa.
What about other descendants ? What rights do they have?
5
@Norville T. Johnson
What do you mean? If they have a claim they will get a stake, same as when families split any Estate.
You have to start somewhere...
1
If you're a descendant of a slave and a plantation owner, do you receive or pay reparations?
74
@Lucy Taylor
It's easy. If your ancestors inherited the plantation and continued to make more money from the plantation after the Civil War by using share croppers as cheap labor, then you owe reparations. If you ancestors were the share croppers and your family were victims of Jim Crow laws, then you should get reparations.
10
@Lucy Taylor
Receive. “Descendant of a slave” is the key. Many black descendants of slaves have European ancestry as the result of rape. Under the anti-miscegenation laws, a child of a slave was always a slave even if the other parent was not a slave. This is so basic a question, I am surprised it was asked, and even more surprised it is a Times Pick.
17
Irony does not invalidate the rightful claim of the descendants of slaves.
9
I’m fortunate in my ancestors. I grew up in a home with portraits, silhouettes, daguerreotypes, tin types, ancient photos albums, letters, diaries and books. And furniture. 250 years worth. Amongst those photos are photos of people in bondage to my ancestors. I own those things by right of inheritance. I also share. Many of these items I have placed on line for anyone (descendants or not) to enjoy.
4
Renty would very likely have many hundreds of direct decendants after 150 years. Why should one of them suddenly be the owner of these images all by herself?
197
@Tom From Illinois Because she was smart enough to slap that picture on a tacky tote bag, that's why!
14
Oh boy. The ship left the dock and you weren’t on it were you? Talk about missing the point.
4
@Tom From Illinois
Because as you know more and gain insight you have the ability to advocate and do more...and Mr. Renty's decedents whether they be one, two, or two hundred can under our legal system make a claim perhaps have their day in court.
4
As a legal matter, Ms. Lanier probably doesn't own the photograph, and for that reason probably loses the lawsuit. That is not, however, the larger point, which is that assuming she can prove it's an ancestor, seeing an ancestor in a humiliating position is painful. What moral rights does that convey? Shouldn't Harvard show respect, sensitivity and sympathy for the emotional hurt their broad and quasi-commercial display of the image created? Almost certainly, yes. But what more should be required of Harvard?
Answering that question is complex, since all of us (really, all of us) have some ancestors who were slaves and others who were slave-owners. Would seeing one of my European ancestors starving to death under his noble owner's heel upset me? Would seeing a different, prosperous ancestor viciously whipping an indentured servant upset me? In both cases, probably not, it's too distant, though the human suffering involved in each would be upsetting in its own right, and appropriately so.
Being a descendant of someone by itself should convey neither rights nor responsibilities. Being a close relative may convey rights, and, less often, responsibilities. Recitation of the suffering of others, even distant relatives, no matter how deeply felt, should not change this result, especially when the sufferers are dead. There's plenty of suffering among the living, and addressing their suffering is immensely more important, since it can be alleviated.
22
There is no right not to be offended. Also, not all of us have ancestors who were slaves or owners. None of my ancestors were in America during slavery years.
8
@chris Hynes
It's statistically as close to certainty as anything gets that your ancestors further back in whatever region they came from included both prosperous noblemen and indentured serfs. That your American ancestors were, like mine, spared both the ignominy of slave ownership and the suffering of slavery should be besides the point.
All of us, only native Americans excepted, came from somewhere else and that somewhere else practiced some form of slavery, as did most if not all native Americans, once again if you go far enough back, which is at most a few centuries, not millennia.
To put a finer point on it, the slave markets of Istanbul were still running in 1908, doing a brisk business, including in white, generally Slavic, slaves. The suffering of African slaves in the New World is monumental and not to be diminished, but it has to be understood in a context in which being, for example, an African slave of another, more warlike tribe in Africa, was also a very bad experience, and being a slave of the Aztecs (to mention but one prominent group of native Americans that practiced slavery energetically) worse still.
Slavery, cruelty, exploitation are human stains that differ quantitatively but not qualitatively; no one gets a pass from having some ancestors of inhuman cruelty, or, for that matter, others who experienced appalling suffering.
It's what we do now, in the present, that counts, and falling prey to forms of ancestor worship is not helpful to that end.
4
@Michael Walker - Neither your sympathy nor your arrogance is required. The reasonable property interest of Ms. Lanier (& those of any other heirs) in the images of her ancestor taken with out consent & used by the fake "scientist" to substantiate that blacks are less human than whites should supersede Harvard's & even the public domain argument if justice has any weight in the American judicial system. But since justice is so frequently denied unless you have money, of which Harvard has megatons, I'm pessimistic about Ms. Lanier's chance to prevail here.
18
@Cheryl
Proper English would be helpful.
1
@Cheryl
Alleged ancestors?
1
@Cheryl - She won't prevail here, even if she had megatons of money. She has no claim, nor any property right in the materials.
"Justice" dictates that neither she, nor anyone else, be allowed to claim ownership of materials that they do not own.
Even if you ~really~ feel otherwise.
8
Are we going to take all of the HeLa immortal cell lines out there and give them all back to the descendants of Henrietta Lacks? Her cells were taken from her cervix without her knowledge or consent when she was dying of cancer.
I actually think her descendants are entitled to some money and that Harvard should return these pictures. But this really is a thorny legal issue.
1
Seems like an uphill legal battle for Ms. Lanier. Even if she can prove it is her ancestor, slavery was legal when the photo was taken, so no crime was committed. It was not even a personal possession of her ancestor, like a comb or article of clothing that one could claim once belonged to him.
From a commercial pov, the photo is newsworthy and a matter of public interest, due to the fact that it's an early photo related to slavery. So use of the photo for an educational symposium about slavery seems entirely appropriate and legal regardless of ownership.
Finally, whether one claims that the photo belonged to the photographer, the slave owner, or Ms. Lanier's ancestor, use of the image is now public domain due to the age.
From an ethical pov, while I sympathize (somewhat) with Ms. Lanier, this seems like simply an emotional issue for her. She has not been harmed or wronged as a result of Harvard's ownership or use of the photo, and there is no intent by Harvard to do so.
I hate to see legal time and money wasted on this emotional folly. Ms. Lanier should rightfully celebrate her heritage and respect the fact that Harvard is committed to keeping the subject of slavery in the public eye. There are so many real wrongs in the world that we should be dealing with.
66
@James
Like modern day slavery that still exists in Africa under still primitive cultures and laws in those countries, esp. female slavery and sex trafficking of children.
3
@James You write, "Even if she can prove it is her ancestor, slavery was legal when the photo was taken, so no crime was committed."
Sir, no crime may have been committed, but taking the photo was still criminal.
1
@James None of what you write shows that you read the article carefully. Crucially, the photographs are NOT in the public domain and Harvard makes a profit licensing them (that's right, they don't let anyone else use the images unless they pay up). And even more importantly, you leave out the origin story of these photographs: they were taken to prove the racial inferiority of blacks. Using them now without explaining the context is a disgusting display of arrogance and manipulation on the part of the countries richest university.
5
169 year old photos?
How is it that this article does not even mention the legal concept of "public domain"?
Surely no one owns these photos anymore.
169 years old!
42
@Robert Holmen
There is an argument which could hold some weight that as the photographs were only rediscovered in 1976, even if they were from the 1850's, they came into existence in the recent past and have therefore not yet passed into public domain.
2
@Robert Holmen
Pffft. I have 200-year-old possessions of several relatives. Those items are not in the public domain and no one gets to swoop and claim them for themselves.
2
@Robert Holmen
If a photo is taken without the consent of the person photographed, this does not mean that the photo automatically becomes the property of the photographed. It rather remains the photographer's property. The photographer is just prohibited to publish the photo without the consent of the photographed.
What about photos of my family when they were prisoners of the USA being held in stables during WWII just because they were US citizens of Japanese descent? And kept without trial for 5 years in the desert where some were shot for accidentally wandering too close to the fence? They didn‘t ask for their pictures to end up in museums and books.
17
@Sylvia
The Japanese interned during WW II received reparations during the ‘80s if they were still living, as I am sure you know. If accepting that $20k check did not bar you from making further claims against the government or your interned family were all dead by then, what is stopping you from asking or suing for the return of your photos?
4
@Lynn in DC. 20k was nothing compared to 5 years imprisonment, the loss of livelihoods, entire belongings being taken by neighbors or government agencies, the humiliation of going from being respected business or land owners, employees, mothers, fathers, children - to criminals. But to answer your question - what’s stopping is the response we would be sure to get like those being posted now.
Ownership of stolen property cannot be passed on or inherited. It ALWAYS reverts to the last LEGITIMATE owner or the owners heirs.
7
@John Carr
This is not stolen property. It might be unpleasant, but it's not stolen.
8
Ms. Lanier lost me when she considered licensing the photograph in the event she prevailed.
62
@Blackstone
It's all about the money.
M
9
Regardless of whether Ms. Lanier has a legal right to the images, her objections bring up an important ethical point: we need to treat the images and memories of enslaved Africans and their descendants (enslaved and otherwise) with far greater respect than we do today. Perhaps one model for how we treat these images would be how we treat images of Jews from the Holocaust.
For example, one would never invite a Holocaust survivor to speak and project above their heads an image of starved, mistreated, and naked Jewish people above their heads for the duration of talk. This would be voyeuristic and disgusting, disrespectful of survivors' suffering. You would never print such an image on the cover of anthropology book, as if these images were studies of humans in our natural environment, though you might put such an image on the cover of a Holocaust studies book.
Papa Renty deserved far better then, and he deserves far better now. May he rest in peace, may he be unexploited, at last.
34
I learned a lot from the other comments. One thing that I would add is that perhaps Harvard should not use the images to entertain or for their aesthetic value. Doing so does seem disrespectful to the subjects of the photo and their descendants.
About the tote bag. It is not classy, but, as someone who identifies as belonging to the same cultural group as the people in the photo, she had more claim to use the image.
I was going to mansplain about victimhood and never succeeding, but then I remembered the holocaust.
4
@Andrew Nielsen Harvard uses the photo to educate, not entertain!
I don't see any proof that Harvard has "profited" from the photo -- say by getting a fee to license it to for-profit publishers. My understanding is that the photo is made available at no charge (and rarely) for works that undertake serious study in appropriate academic fields -- not for mass-market or commercial works. (By controlling the license, Harvard also prevents the photo from being exploited by people with ill intent.) If, however, Harvard or an outside publisher makes a profit from a work featuring the photo, the concern is far more legitimate.
Using the photo for a serious academic conference on the history of slavery at Harvard seems quite legitimate.
Should the photo be kept from view because it causes pain to the subject's descendants? Or because Agassiz was an ignorant racist? That's a debate I'd be eager to listen to, and this article does a good job summarizing the likely arguments on both sides. My understanding is that very few photos exist of enslaved Americans that were taken while the person was still in bondage. In that sense it's an important piece of historical evidence of the crime of slavery and serves a profound educational purpose.
As for Agassiz -- that's easy. Take his name off the library.
9
@Eyeballs
Because you personally cannot see how Harvard has profited/benefited does not mean that the institution has not profited. The prestige a collection of rare photographs, artifacts, and other material culture items have a value that at times supersedes mere monetary gain.
1
Oh guess what we make copies now... museum quality. Let the woman have the photos and Keep the copies.
5
@KLS: they are very delicate, 180 year old daguerrotypes -- very fragile.
Ms. Lanier has no way to store these properly.
If this suit succeeds it will open the door to countless suits by descendants of people whose photos were taken (presumably without legal niceties like permissions and releases) in the Civil War, WWI, WWII, etc., not to mention the millions of historical and anthropological photos of people around the world, many of which have ended up in museums, historical societies and other repositories.
Harvard "owns" the photos in the sense that it commissioned, paid for and took possession of the photos back in 1850. However, it is pretty much certain that the subjects did not give permission or sign releases giving up any rights they might have had in the images. Further issues to be resolved include what copyright and property laws applied in 1850, and whether slaves were even allowed by law to own property, whether real, tangible or intangible. Awful though it is to consider, perhaps those with legal standing to bring a suit are the descendants of the slave-owners rather than Ms. Lanier.
It seems to me that the scanty and understandably incomplete written records on Renty/Delia may make it very difficult for Ms. Lanier to prove she is their descendant. Perhaps Ms. Lanier should consider taking a DNA test if she hasn't already, though the danger in doing so is that it might not confirm that any of her ancestors came from the Congo. (Consider Elizabeth Warren, who claimed to be of Cherokee descent but whose DNA test showed her to be 1/1024 Native American from Central America.)
10
@Mal T
Your suggestion to apply the law of 1850 to this question would be additionally compromised by the location where the photograph was taken. If it was taken in a free state, the applicable laws would be different than if taken in a slave state.
So I'm not sure that's the best criterion for determining this matter.
1
@Richard Legal precedent is in the jurisdiction(s) where legal precedent happens.
Richard, whether or not you think it best, the law at the time and in the place the photos were taken is normally the legal criterion that must be applied. The question is whether Harvard came into possession of the photos legally. It is also possible there is a statue of limitations on such legal issues.
2
Photographers own the copyrights to photographs. THE END.
20
@Caroline Is that true for, let's say, child pornography?
Are slaves any less victims that sexually abused children are?
Perhaps not THE END?
3
@Caroline
That is totally incorrect.
If a photographer takes a photo of a famous model, that model must grant the photographer the right to use his/her image. If a photographer does not secure such rights, either by payment or by waiver, then the photographer does not have the right to use the image.
@Caroline Yes. This reminds me of something from years ago where a woman who had sat for an artist was claiming ownership of the paintings in which she appeared!
2
A subject of a photograph or artwork must be capable of providing consent to their depiction. No consent, no rights waived, no consequent right to profit thereafter by the photographer/author. This is why child pornography is illegal, and why purveyors and possessors are both penalized. Depictions of enslaved people incapable of giving consent, earning royalties, or otherwise making a choice in absence of duress ought to be viewed in the same light.
All the IP fetishists are missing a crucial issue: there should be no statute of limitations on basic human decency.
10
"This is why child pornography is illegal"
WWD, you have somehow neglected to mention the other reason pornography is often considered illegal: Because it's pornography.
3
@WWD
Thank You. This is the best and most pertinent comment yet.
@WWD
"A subject of a photograph or artwork must be capable of providing consent to their depiction. "
Not so. In the U.S. I can take a picture of anyone in public w/o any consent. I cannot use the picture for commercial (such as advertising) purposes w/o a model release.
I can use it for educational and artistic purposes.
These two photos are not the exclusive property of Ms. Lanier, rather all who share the bloodlines of Renty and Delia. It's an attempt at a money grab. The photos should take their proper place in a black history museum and any proceeds from them going back to the institution for preservation, curation and educational purposes.
15
I think this suit is reasonable and understandable, but I also understand the legal arguments about photograph ownership. Harvard should settle with Ms. Lanier, and then work together with her to ensure that the daguerreotypes are used (or not used) in the best way possible to educate and inform, without (further) exploiting the human beings involved.
5
@Amelia
Probably the most constructive, enlightened comment here!
Next up, holocaust imagery of death camp inmates ...
7
@Chris
That's in the Holocaust Museum.
Harvard should donate this object to the National Museum of African American History on the Mall. Then the Lanier family and all potential decendants of Renty and Delia could participate in a project to uncover their line.
We can never compensate today's descendants with money, but we can make it unacceptable to continue the discrimination that is still so wide spread.
We do not care about pictures, during a time of torturer, a heinous time in Americas criminal history. We want Retribution for the mental slavery that continued to the present day. Now that would be a pretty picture. The slave master great grand children paying for there great grand, & grand fathers Cruel treatment towards Black people. The white man has made a some what amends to the Indians, Japanese. Why are we the only ones not receiving compensation for there Atrocious behavior. Nothing will ever go right for white people, as long that they continue with dodging the slave matter with black people, there privilege existence will soon be over, and the white man will pay for there crimes against the black man & black woman.
1
It's all about the money.
14
We have now come to the absurd.
17
Slave? My 8th graders know that “enslaved person” works to acknowledge each persons humanity and the fact that slavery was something imposed on them.
- A public school social studies teacher
7
@Tara D
That is silly . Black people were slaves, stop trying to sugarcoat things to make others feel better. Are concentration camp prisoners described as mandatory vacationers in your revisionist teaching plans? This is yet another reason to homeschool rather than subject one’s children to public schools.
4
@Lynn in DC @Tara D
Homeschooling doesn’t seem to have been to your benefit, Lynn, especially when it comes to reading comprehension. Simply using the term ‘slave’ does not necessarily bring to mind that human connection. Whereas, the new term, ‘enslaved person,’ does force the speaker, hearer, writer, or reader to envision an actual person who has been enslaved against their will. It is about facing the ugly reality of enslaved fellow human beings. It’s pretty much the opposite of ‘trying to sugarcoat things to make others feel better.’ Not sure how that’s a ‘revisionist teaching plan’ either, but, hey! If you’re homeschooling your kids, you’ve got to know more about that than I do since I sent mine to public and private ones.
The copywrite of the photograph belongs to photographer not the subject unless the photographer relinquished it.
12
@Eileen
You don't know what you are talking about.
A photographer who uses a model must secure the model's rights to his/her image either through payment or waiver.
Anyone in the entertainment and fashion arenas will be able to inform you about how that works.
@Eileen And if the photograph is of child pornography, does the photographer maintain the copyright? Is no consideration to be given when the subject of the photo has been exploited by perversity or bigotry?
Richard, as long as we're being precise: Do you know the relevant law in the jurisidiction where the photos were taken, at the time they were taken? (Me, neither.)
2
Silly me...I saw the headline and assumed it meant the descendants of the photographers. The idea that a photograph or painting belongs to the subject and not the artist is an assault on artists everywhere.
17
@ljmiii
You just don't know what you are talking about.
When a photographer takes a photo of a model, the photographer must secure the rights from the subject either through payment or waiver.
@Richard i would guess you have taken photos in public places out with family or friends. Do you get waivers from every stranger in the background? Do the photos belong to them?
4
@Richard
Was that the law back then? Perhaps you do not know what you are talking about.
3
Now let me think about this for a minute.
If I take a photo with my cell phone who can claim property of the photo?
A. Me
B. The people in it
C. The cell phone company
If I place that photo is of a professional model with my neighbor's dog on the street corner with the public park in the background, who reserves property rights to that photo?
A. Me
B. The model with the dog
C. The photo shop which processed the photo
D. The city because it was taken on a city street
E. The Public Parks and Transportation of the city
If my great grandmother had her picture taken in 1889 (she did) and she paid for it so she could give it to her fiance, but she left it to my grandmother, who gave it to her daughter, which I found in a shoebox after my mother died and I am the only child. Who owns it?
A. The traveling photographer's family
B. My cousin 4 times removed
C. Me
This is a stupid waste of tax payers money. The photo belongs to either the person who took it or if they were paid to take it then it belongs to the person who paid. Even the revenge porn sites don't claim that the person who is the subject of the porn owns the video or photos.
18
@Susannah Allanic
If you are a model posing for a photographer, you must grant your rights to the photographer in order for your image to be used.
Clearly, you have never been involved in the entertainment or fashion business.
@Susannah Allanic You're forgetting one very important detail in your multiple choice questions: The subject in the photograph was likely not posing out of his own free will. He was a slave and had to do as he was told. We cannot ask him, so therefore it's complicated.
1
Mithu, Slavery was a terrible thing. The best thing to do about it now would be to have a color-blind society where everyone is not merely equal under the law but where everyone is truly equal in how they are treated by others.
But using that awful chapter of American history as a reason for eroding the rule of law would be a terrible idea: Two wrongs don't make a right.
3
What if a photographer captures someone doing something evil? Should Nazi prison guards be able to claim photos of themselves and take them out of circulation? Our common history is our common heritage, for good and ill.
11
This strikes home with me because ...
I am able to go up on Google Maps and look at the exact locations of my grandfather’s bakery and my father’s candy store on Neudorfer Strasse in the heart of the business district of Gliwice, Poland (formerly Gleiwitz) for which my father never received a single penny of restitution money from either Germany or Poland.
My mother who lost her elderly parents and young brother in Auschwitz after spending nearly two years in the French hell-holes of Gurs and Drancy had a similar experience.
There is a widespread rumor still evident in certain circles that Jews made out like bandits in restitution money, returned art works and other property in the wake of World War II, but that is far from true.
My advice to blacks in America who now find themselves in somewhat analogous situations: keep going straight ahead in your bid for just compensation for the next hundred years knowing that in all probability you will never get a fraction of what is truly owed you.
https://oldthing.de/Gleiwitz-v1944-Neudorfer-Strasse-mit-Geschaefte-17227-001-0021683778
12
She has no case. She will have to prove she is the actual heir to those people pictured, and even then she is not an inheriting heir because she was not mentioned in a will and no stipulation was made that she inherit anything. Then there is the fact that she does not own the photographs. The person who commissioned the photographs owns them. That's our law. There is no ownership right to an image for the subject of a photo. Only a right to prevent its use for commercial purposes without a subject's permission and compensation, assuming the person is alive.
She can only appeal to a person's sentiments.
18
Tracing genealogy is hard enough, but it can be especially challenging for African-Americans. The assumption that everyone with black skin is descended purely from slaves is simply not true.
In fact, the PBS show "Finding Your Roots" revealed that "Selma" director Ava DuVernay actually descends from a WHITE SLAVE OWNER from Haiti. Also revealed was the fact that Ta-Nehisi Coates, one of the primary voices pushing for reparations, actually descends from free blacks who were wealthy landowners.
I certainly sympathize with Ms. Lanier but I suspect she will have a hard time proving a direct link. Oral history is often proved wrong by research. In my own family, my father's lifelong belief that he was Native American was crushed when he learned he was actually Jewish.
162
@shstl, you do realize that Jewish is a religion, not a race or national origin, i.e., it's possible to be a Native American Jew.
5
@shstl
A direct link doesn't matter. Descendants don't have an automatic right to all images of their ancestors. There is no legal right - nor a moral one, IMO. Worse yet, she's trying to take the pictures away from people who use them to educate, and show how wrong slavery was.
16
@DCLawPossible yes, but not very likely.
4
I'm not a lawyer, and I don't argue against the commenters below who say 1. there's no real case here because at the time of the events, it wasn't illegal, or 2. that it would set a terrible precedent re: ownership. But sometimes a good-old "let's do the right thing" regardless of what the law says or doesn't say isn't a bad thing, and this may be one such example.
29
@Adi.T
And guess what? Your groundless "do the right thing" emote then sets bad legal precedent that will eventually land in some court. This is why logic remains the finest guiding light, not tears and tantrums.
9
There is plenty of case law stating that you don't "own" photographs taken of you -- the copyright rests with the photographer (unless you have an agreement vesting the right with you). Even if she could prove she was a descendant (which I'm not sure how she could), the claim is a non-starter. And even if she is a descendant and there was a right to ownership, she would need to join in every OTHER descendant as well, because at that point, it's a wills and trusts issue.
120
@Michigan Girl
Do you really think that Renty and Delia consented to by photographed?
9
@Michigan Girl You are not sure how Ms. Lanier could identify her ancestors - it a little thing called DNA. Your sensitivity is awe inspiring Michigan Girl. Thank you for your legal expertise.
@Michigan Girl The difference here is that this was a photograph taken against the will/without consent of the subject
2
The photo is the result of slave labor that was legal at the time of the taking. The spoils of slave labor were not, and are not, considered theft at the time when slavery was a legal practice. This case has no merit and will be tossed pre-trial.
90
@dave: Or we could recognize how terribly these people were treated (regardless of whether it was legal) and make reasonable reparations. It's very easy for us who are not black of Native American to act like this is 'dumb.' We'd likely feel different if we felt our ancestors had been dehumanized and stripped and forced to have photos taken to prove their inferiority. There is a moral component to this that many comments seem to be wholly ignoring.
21
@dave Beg to differ greatly. You should talk to pretty much any African American on the street. They will tell you that "the spoils of slave labor" are absolutely considered theft. Please take a moment & educate yourself on the case for reparations before making such illogical statements.
9
@Anne
No moral problem at all: it happened more that 1.5 centuries ago and was acceptable then.
6
I completely sympathize here. But the question that occurs to me is whether the photographer retains any ownership over the photograph taken even when the persons photographed cannot reasonably consent?
8
@Kristin No matter the subject material, the general thought among people I've asked this question of just now is that, yes, the photographer as a work of art and creativity, owns the image, whether or not the people in the image have given consent. Consent is a more modern concept. And further there is no prior need to ask when one is taking photos with over a certain number of people especially in a public spot.
A more disturbing analysis is that as slaves, there was not need to consent. While unsettling this opinion adds to the argument that the basis for this lawsuit has any foundation. And certainly no standing from a legal point of view.
This does not get into the equally divisive discussion about reparations. That is a different discussion which has little firm information upon which to form an opinion, which in general is based upon various factors including one's own moral viewpoint. Notably, there is no obvious right answer from most who have discussed this.
4
@reid To avoid lawsuits on this very technical matter, I recommend consulting an attorney.
My initial response is that there is no case here. Then I reconsidered. I won't hurt America to have this come to court and for the issues to be discussed.
10
This strikes me as a troublesome precedent. If any photo taken without the subject's will or knowledge is the subject's property, all paparazzi photos belong to the celebrity and all mugshots belong to the suspect. In addition to that, my sympathy for Ms Lanier evaporated when the photos of Renty and Delia were used to decorate her bag.
200
Gee, I had a photo of my Mom on a US postage stamp and I was proud of that. Having a photo on a bag is diminishing.
6
@Michael Walker There's some personal and arbitrary judgment going on here, aside from legalities. I don't think the photo on the bag as inherently wrong is completely fair to Ms. Lanier. Especially since the photo can currently be used by Harvard any way they wish.
If the photo means something emotional, personal and historical to Ms. Lanier, which it obviously does, and she wants to use it on her bag as a personal memento, she should be able to do so without it being a factor in anything. it shouldn't be subject to aesthetic criticism from strangers who may not get the reason she so proudly carries the photo with her, publicly visible.
13
@Michael Walker
"Celebrities" - the focus of paparazzi - are treated very differently under the law from "regular folk. And the legal theory being offered here - re: lack of consent - raises another entire dimension. Who cares how it "strikes you" - you don't seem very well-informed, but are pretty ready to spout off.
10
While we are on the topic of race, around which so much of America's orbit evolves from, I've taken notice of a feature of this legacy. About 20 yrs ago, Harvard asked alumni how we felt about their novel use of "persons of color". I objected then, and still do.
I cited MLK, Jr.'s urging that we judge a person by the content of their character, not by the color of their skin.
Using "person(s) of color" perpetrates the black-white divide, to our detriment. Let's equalize the insult by referring to whites as "person(s) of no color".
Equally outraged, I hope, will cause us to clean up our language to stop using code language to continue separating people on the basis of color. I'm surprised by the number of African Americans who use "person(s) of color", even in referring to themselves.
Instead of moving forward, we have fallen backward.
42
@Fdo Centeno
Maybe they can stop with the coded designation of "African" Americans?
6
@Fdo Centeno I do not believe you are in the position to make this call on what people of color should or should not identify themselves as. And for the record, I should not either as a white woman. But I do know that white people have been telling people of color what to do for far too long. I believe your comment is coming from a nice place but we, as whites, should gracefully step away from this debate.
5
@Lisa
Every human being is in the position to make that and any other call. You don't own the call, nor do any others - regardless of race. Travel to another non-white country and those black or brown people tell white minorities "what to do" and have for far too long. The human species doesn't evolve until BOTH the racists and race industry social justice warriors demilitarize.
3
There appears to be some confusion in this article. For example between owning the copies and owning the rights. Presumably, Harvard holding the original glass is unrelated to the image appearing on a book cover. And how do you license a public-domain image?
16
@Bob Harvard owns the photo and the rights if they copy or scan it. You are correct the image is public domain, anyone can reprint it and use it. The subject and the photographer own nothing, neither do the ancestors, none of us do, because the rights to this image are expired. Same as any other image taken before 1924. The subject or the relatives or the status of the person at the time are irrelevant.
This is not a race or slave issue, it's a copyright and legal ownership challenge and there's no way the relatives have any claim to anything for any reason, none of us do. That's the law.
Click bait, sensational, political news, race baiting, with biased and leading headlines on many other sites. Anyone with a basic knowledge of the law would have said, "You have no claim" and it would be over. Her lawyers are either milking this for attention or taking her money. There's no case.
9
No, this is just nuts and Ms. Lanier is just wrong.
Should the descendants of people in other photographs demand them? How about paintings?
And on the practical side: She can prove they are her ancestors? What about other descendants of the people in the photo?
29
Until William Tecumseh Sherman came by my paternal black African ancestors were enslaved on plantations just east of Atlanta where they were owned by and bred with my white European American ancestors.
After their enslavement ended they and a few other families embarked on a real and symbolic exodus to a new land that they dubbed New Canaan. They abhorred the thought of being free anywhere near the land of their bondage. My paternal aunt died at 96 years old 4 years ago. She knew and met two of my enslaved black great grandparents.
No Americans ever worked harder and longer for less return than enslaved and separate and unequal black African Americans.
No one other than the biological DNA genetic blood heirs of the enslaved has any fair, just and moral rights to claim anything of value or interest arising from that legacy.
While the claim of others may have legal power the reality that black enslavement and separate and unequal while black were both lawful shows the cruel cynical callous hypocrisy of the " law" in" the land of the free and home of the brave."
God's judgment on America!
44
Religion & morals have very little to do with the law...the lawsuit should be tossed on summary judgement.
11
@Blackmamba The case you try to make is, as I read your comments, one from hyperbole and overstatement.
Your third paragraph states no Americans ever worked harder and longer..., and immediately the terrible fatality rate among those who were enslaved and worked literally to death on the Virgin Islands' sugar plantations comes to mind. I still am stunned by the brutality and oppressive impact being enslaved there had upon it's victims. Those enslaved in the mainland US were no worse as you profess.
And of course you will never have the degree of certainty stated in your fourth paragraph
The article says the plaintiff has the 'feeling' that the folks mentioned are her relatives. I'm sure the courts would make short work of her instincts vs. provable reality.
7
@Blackmamba
Always showing up with a race industry speech, BM. At least you're consistent.
8
Ms. Lanier may be morally correct (I don't know), but this is really not a matter of law.
Still, she cannot be too disappointed that it resulted in an NYT article.
10
These descendants own the rights to their ancestors image these iconic images were taken From them not Of them at the time.
3
@John
You are wrong, and need to write better.
6
Who "should" or who "does" own the photos. Yes, slavery was awful all around the world, and chattel slavery was horrific, that's why over 100,000 white men died in the civil war to end it. But that was then and this is now. You cannot retroactively apply laws. Art that was stolen from Jews as part of war crimes should be returned to the families. This is different, slavery was legal at the time and for 5000 years before. You cannot punish people retroactively for following a law that changes.
19
@Tom Graham Except the laws in Nazi Germany let them legally confiscate materials from Jew who were legally deported. That did not stop the war crimes trials nor the repatriation of art to the original Jewish families that owned them.
6
@Tom Graham
Make that 1 MILLION young U.S. white males killed or permanently crippled (there goes one's ability to work a farm or much of any job) from both the south and north. No one wins a civil war.
2
@Tom Graham 100,000 white Union Soldiers died - so you say- well, it was more like about 600,000
1
I understand how offensive it would be to see your ancestor stripped to the waist in a humiliating photo shown to the world for profit or as part of a “study”. She’s right. Harvard is wrong.
24
@Nancy Croteau Consider then pictures from the concentration camps of WW2. Who 'owns' those pictures? One can argue everybody and nobody. This is a deep question that has me feeling uncomfortable. Thank you to the author of this article, Ms. Lanier and Harvard. This is a discussion that needs to be had.
7
@Nancy Croteau Being upset or offended doesn't convey ownership of the image, which is what is being argued here. The photographer owns copyright of the image and then that right is passed on to whoever took legal ownership of the physical item. On top of that, based on the amount of time that has passed since it was taken, it's likely already fallen into the Public Domain.
7
Last year I commented on an NYT article that the Democrats and the NYT seemed to be leading a move for reparations. Same questions today:
1. Why not also reparations for Native Americans, whose lands and lives we took, and the Chinese who were brought here more or less in slavery?
2. What % A-A/N-A/etc. descent will allow one to receive reparations? Will those with a higher % of African/N-A etc. DNA get larger amounts? Which DNA test(s) will rule?
3. Will a present-day A-A who is descended from an African tribe that captured other Africans and sold them into slavery receive or pay reparations?
4. Will a white American whose European forebears and American ancestors never held slaves have to pay reparations?
5. Will A-A/Chinese/etc. who (or whose forebears) came to the US voluntarily receive reparation payments?
6. Will non-African Americans who came to the U.S. in the last 1/2/5/10 decades have to pay reparations?
8. Will illegal aliens receive or pay reparations?
9. If the US is to pay reparations to A-As, will each recipient's payment be reduced by amounts previously paid to the recipient and the recipient's parents/grandparents/children/etc. in the form of welfare, affirmative action, etc.?
10. Will African nations/tribes who sold fellow Africans into slavery be required to pay into a reparations fund?
A year ago I predicted the Dems would lose the 2020 election if reparations were in the Dem platform. Same prediction today.
97
@Mal T
Easier, by far to pose these important questions, than to work together to address them.
I hope we have such courage, and that our posed questions are not merely obstructionist.
7
@Mal T Please remember that the Dems did not lose the last election. Also it might be helpful for you to education yourself that in addition to the 3 + million votes for Clinton does not include the stolen votes from the 890+ voting stations that were closed, nor does it include the suppressed votes either.
Try and be a bit open minded when considering the complex subject of reparations. And for the record the Chinese were indentured slaves - they did buy their freedom.
16
@Mal T I've had the same thoughts. My great-grandfather fought in the Union army and was wounded twice, once at Malvern Hills and once at Gettysburg. Does that mean my family and I don't have to pay into the reparations fund?
22
All legal work here, plaintiff & defendant, should be pro bono. Harvard. Make it so. Make it right.
4
Sickening to look at that inventory with prices and naming conventions similar to livestock - Big Renty, Yellow Sorrow...
America has much to answer for in this regard - using enslaved humans to build a wealthy country for white owners.
Surely this family can acquire the photos of their ancestors - I'd say it's the least the university can do.
27
@Barbara Slavery ended in the US in 1865.
5
There is a saying that bad facts make bad law.
Harvard should just hand over these pictures in the name of decency.
30
Yeah, but who to? There are lots of ancestors. Kids love playing the card game snap, I guess.
4
@Ann This would set an untenable precedent for Harvard and all the other museums and historical repositories in the world, which would then be besieged by persons who felt they had any degree of rights or ownership of photos or other items in the institutions' possession. Museums and similar institutions hold their collections in trust for the general public, and can't simply give them back to a person or other entity that claims ownership without proof.
The first thing is to establish whether Ms. Lanier has any legal rights to the photos.
Then there is the issue of possible owners' rights among other descendants of Renty and Delia; Ms. Lanier would need to establish that there are no other descendants of Renty and Delia who have rights to the photos.
If Ms. Lanier's exclusive or join ownership is proven, then the photo(s) should be given over to her/their possession.
3
I thought we were past this use of “slave” in place of “enslaved”. Who do I have to pay for the NYT to lose the essentialist language?
4
@Plum
I am an electrical engineer. i design circuits which include master and slave hard disk drives.
.
Should we change the name of these components? Are we engineers rascist?
3
@Plum
Slave is the proper term. Enslaved person is revisionist nonsense.
3
@HH Not to mention the use in mechanical engineering of "male" and "female" to refer to shafts and matching holes in assembled parts. Are we also sexist?
1
Very interesting. Harvard should give her rights to the images or how about using the money to fund scholarships to Harvard for deserving Afro-American students who are financially unable to go. What about photos of Jews in Nazi concentration camps; not the same thing exactly, but who owns those rights?
3
Harvard is already need blind...
Some people are knowledge blind; this is a nuisance suit & should be tossed.
6
What about the photographs of Natuve Americans, the photos of them poor and destitute of the Great Depression as part of government program to document the situation, the photos of civil war soldiers (dead and alive), the Ellis Island immigrant photos?
18
@Jennifer
What about them, indeed. Technically, all photographs document something. The ones in question, rather than documenting people in a moment in time, are ‘subjects’ in a study setting out to prove that blacks were inferior to whites. Furthermore, they were not documenting people, they were documenting property (at the time).
Since our hearts and minds have changed so drastically in the intervening years... well, most of ours, at least- as an educational institution, Harvard should be at the forefront of returning all of the daguerreotypes to their rightful owners.
2
@Campffire yes!
I'm not a lawyer but to me the first step is to show that she is the only heir We need to find all the descendents of all the people in the pictures.Some of them might not want to sue .The costs could be amazing and the precedent might open up other suits.The next thing ,owners of ancient photos might settle cases even if they don't have merritt to avoid expensive lawsuits.Would she like to have these photos in her living room or in public domain as a history lesson.
1
If Ms. Lanier is so upset by the images being shown; why did her daughter make a cheap looking tote bag exploiting the images even more? Is the daughter going to sell the bags to help pay for the legal fees? Who actually owns the rights to the images? If Harvard does; then they can do with them as they please.
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@Edward Everett, presumably you recognize that it's common to display images of loved ones on shirts and bags. It's a question of control. It's a very different thing to learn that strangers are displaying the same image, especially in a context you don't approve.
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@Elliott
She can't prove she is related. It wouldn't matter even if could.
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@James How much would any of like to see our ancestors on a museum shopping bag?
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So many fascinating legal issues here. A portrait is a statement of selfhood and self-possession, an emotional state also linked to human dignity. Frederick Douglass understood this; recently published works explore his use of photographic portraiture to claim for slaves' and ex-slaves' inherent humanity. The common law right to privacy also includes the protection of human dignity from the intrusions of other people.
Interesting to note that portraits rarely appear in probate inventories in 18th- and early 19th-century America. Family heirlooms, yes, with perhaps little market value. But might we not also see in such actions a preservation of the portrait subjects' dignity? What images do we frame, encase, or place within our albums and homes to allow or monitor others' access?
In the 1850s, portrait photographers, using glass-plate negatives that could easily reproduce images, adopted procedures to ensure subjects' privacy, from asking permission to display a portrait to advertise photographic expertise to denying requests for copies of others' portraits without the subject's permission. Nevertheless, the rise of advertising and celebrity and the means by which a mass audience could access images, converting one's image into property.
Photographic technologies confound assumptions of privacy and dignity. Whether in the Daguerreian era or today, the questions are the same: Are privacy and personality protected in common law? Or are these property interests?
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The photographs were the property of the photographer or the entity who commissioned them to be taken. Once copyright has expired they would belong to whoever legally acquired them.
Those facts do not change just because the reasoning behind taking the photographs is abhorrent.
I really don't see any court wanting to set the precedent that would arise from this case being won.
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@Paul H
I hope you are blessed enough to experience something similar to what that family experienced, so you can offer some actual wisdom to the debate.
If you and your family were to be attacked by thugs, stripped naked and photographed as part of a "study" to demonstrate your inhumanity and inferiority, I can only hope that you would maintain the graciousness to defend the photographer's rights of ownership one more time....
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The photographer owns the image, but the person photographed reserves the rights for the image to be used, distributed, displayed and otherwise utilized, unless it is signed away. In the modeling industry, this is called a model release.
In this case, the person who image was taken, did not give consent for any of the uses of these images.
So yeah, there is a case here legally.
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@Shmoo ~
Such claims, such as the "need" for consent, are most likely based on the laws in place at the time, yes?
11
If it were images of my ancestors (for all I know, they could be my slave ancestors!), I would want them out of the public eye and I certainly wouldn’t license the images.
I suspect Ms Lanier may be willing to settle for a percentage of Harvard’s revenues from the images. The sentence about licensing seemed to be a signal.
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Let's be careful here. Even if this particular case is disturbing, the consequences could be vast if the subject of every photograph ends up owning the rights to any photographs taken of them. What if there are multiple subjects? Does the photographer have any rights? What about painted subjects?
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The insanity of this country is showing no signs of slowing, I fact our nursery gets now inane day by day.
While I'm obviously not going to say slavery was 'good', I will say that this was almost 2 centuries ago, and for someone to think they're the rightful owner - now - is ridiculous.
It may very well be new pictures of her relatives, but, Ms Lanier has legal claim of owning this as much as someone who can prove (for example) an ancestor is the subject of a Gainsborough portrait.
Though she has no claim, I would - simply as an act of kindness - offer Ms Lanier framed reproductions, but nothing else.
Times are constantly changing, and what was once acceptable, and isn't, is no reason to judge, or compare to the current standards.
As an example, for entertainment, the ancient Romans had gladiator fights to the death, and the colosseums in which these took place were financed by the government (and built primarily by slave labor - and those slaves were not 'just' of African descent, rather, they were from conquered people's throughout the empire). Fighting to the death of one combattant is no longer acceptable anywhere, but that was then, and what we can do is learn from the past.
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"Times are constantly changing, and what was once acceptable, and isn't, is no reason to judge, or compare to the current standards."
That one statement in the comment by "UN Owen" is quite telling. The very idea that slavery was once "acceptable" is absolutely absurd. White slaveowners, of course, might have accepted it. Slaves, however, did not think it was a good idea. And even most white people in the world thought it was an abomination, as evidenced by the fact that the US was the last country to outlaw it.
The only way we can consider that the feelings and opinions of black slaves are not to be taken into consideration is to consider them to be less than human people -- which was the whole basis of slavery.
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@U.N. Owen How Hearts Gf
And why is property ownership of an antecedent's interest in property (here a likeness taken without consent but used for commercial gain) ridiculous? Harvard is claiming an adversarial interest - specifically a property right & ownership of these photos. If the passage of time is all that is needed to remove someone from their rightful interest in property then Holocaust survivors & their descendants would not be able to successfully force global disgorgement of property taken by the Nazis & their sympathizers. Similarly, time should not break Ms. Lanier's interest here.
5
People only the rights to photographs if they pay a photographer for them. Otherwise, photos and the rights of reproduction belong to the photographer. However, photos of persons cannot be used to advertise without their permission.
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@William Case
Well, that seems to make sense for subjects who voluntarily sit for a photo.
However, these folks had no freedom to choose...no freedom, period.
I would think that changes the situation.
4
"Her mother, Mattye Pearl Thompson-Lanier, who died that year, had passed down a strong oral tradition of their family’s lineage from an African ancestor called “Papa Renty.” Shonrael, Ms. Lanier’s daughter, wrote a fifth-grade project about her ancestor in 1996."
My mother told me that we are descendants of George Washington. Doesn't that mean I own Mount Vernon? When can I move in?
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@mpound Even if she had an ancestor named Renty (or you George Washington), it still doesn't mean it's THAT Renty or George Washington.
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They’re not asking to move into Mount Vernon. False equivalence rides again . . .
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@mpound Your comment is acutely offensive.
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As Midnight Oil's song about the indigenous people of Australia said, "it belongs to them, now let's pay the rent."
Harvard is not just our oldest university, but one of the US's oldest non-profit organizations. It is ideally suited to be a leader in one of the two parts of reparation: determining who should pay and what they owe.
The other part, who is owed what, is both very complex and very simple. It is one of the chronic excuses for avoiding the issue, but we've got to start.
14
I'm reminded of the debates that arose around "Kennewick Man" - a human skull unearthed in Washington State, and thought to be about 9,000 years old. Under the federal Native American Graves Protection and Repatriation Act (NAGPRA), various Native American tribes wanted to have the skull reburied. Anthropologists and other researchers were horrified--the skull is a unique and important artifact possessing important data. Lawsuits followed, and there was some very bad behavior by the scientists (suppressing info that supported the NAGPRA claim). Eventually, after a lot of stalling, research, and publication, the skull was returned and reburied.
There is a hard truth in these debates: were the hideous abuse of Native Americans and African American slaves not continually denied, suppressed, and downplayed up to the present day, the anger and resentment that partly drives the battles might not be so intense. The "loss" of Kennewick Man and of these photographs to science and the public is, surely, the price of this nation's failure to face up to its behavior, both legally and culturally.
My hope is that once the photos are returned to the sitters' family, that they will be donated to the National Museum of African American History and Culture. We are fortunate to have, at long last, a venue where they can be contextualized reliably and presented with respect.
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@Eve S. This writer's account of the Kennewick Man case is not accurate. A Federal judge decided that the scientists could examine these important remains - partly because they are so old it's not at all clear that they belong to any present-day Native American tribe. After the scientists sequenced Kennewick Man's DNA, they found that he was indeed Native American, and the remains were returned to the tribe where they were found - in other words, it was a compromise. The tribe got the remains, but the scientists got their data - which, I think, was vastly more important than any other consideration.
I don't feel that artifacts of this kind - including the photographs discussed in this article - should belong to anyone. They belong to all of us (by which I mean all of humanity). I agree with Eve that the photos belong in a museum - where everyone can study them. The issue of royalties, licensing, etc. - in other words, money - is another matter. Let the lawyers fight about that one.
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@Eve S.: Very well said.
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@RJ
RJ, please, keep your "feelings" to your self-important self. Who are you to determine what is "vastly more important than any other consideration." Who are you to determine what should be left to "the lawyers" Lawyers(!!) to fight about?
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How are they going to find all the other descendants and split ownership among them?
That's even supposing the subject of a photograph has ownership rights. Law, especially the abstraction called "intellectual property" law, can be a source of trouble. It's much simpler to associate ownership only with tangible objects.
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@Jonathan Katz For better or worse (better, in this case), the law recognizes the concept of intellectual property and makes a clear distinction between "tangible objects" and rights in the content of those objects. In fact, that concept is established right up there in in Article I of the Constitution. So we must ask: Simpler for whom? Troublesome for whom?
Although the US doesn't use a moral-rights concept like that found in Europe, there is a clear moral issue here. A crucial point of this lawsuit is to call attention to a casual, and blind, assumption that the photographs are not of real people--people with descendants, with reputations, and with agency.
First, let's acknowledge that fundamental point; then we can worry about the utterly secondary and easily resolved administrative questions of splitting ownership. (As a point of information: joint ownership of intellectual property is commonplace.)
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There shouldn't BE any intellectual property dispute over 169-year-old photographs. They should be in the public domain and not subject to any claims of intellectual property.
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@Anthony Flack You're right that copyright in these photos expired long ago. The family could not legally prevent the publication by others of these photos even if they owned the pictures themselves. (Jonathan Katz was confusing intellectual property law with real property law.)
But while the images are indeed in the public domain, there's still a question about the ethics of how they were made and how they are treated now: still as specimens, as evidence in the historical record, and emphatically not as family photos. If we ignore the problem that Tamara Lanier has exposed, or dismiss it as lacking merit because the deadline on copyright has passed, we don't exactly shine. There have been far too many of these easy dismissals. (The Henrietta Lacks story comes to mind.) Americans--white Americans--have done a lousy job of confronting the poison of slavery; clearly, that poison is still in our bloodstream.
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Besides the interesting legal questions--who owns the "intellectual property", does Ms. Lanier's claim supersede that of other descendants, after all this time does the image fall under public use--this is, at its heart, a story of our nation's original sin and our reckoning to absolve for it. It's a fascinating story that ties into the idea of reparations.
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@JellyBean
Like many legal matters, copyright law is not simple:
https://www.legalgenealogist.com/2012/03/06/copyright-and-the-old-family-photo/
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@JellyBean The photos themselves would (and should be) be public domain at this point.
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@JellyBean: In a discussion of 'reparations' women and Native Americans deserve first consideration.
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