Lawsuit Alleges Harvard Profits from Photos of Enslaved People

https://news.yahoo.com/harvard-sued-descendant-u-slave-photographed-19th-century-015706536.html

This story has seemingly been picked up by every news service in the country and is quickly spreading all over the world. This seems strange to me since the basic facts of the story date back to 1850 when Louis Agassiz had 15 daguerreotypes taken in Columbia, South Carolina. According to the following journal article:

Wallis, Brian. "Black Bodies, White Science: The Slave Daguerreotypes of Louis Agassiz." The Journal of Blacks in Higher Education, no. 12 (1996): 102-06. doi:10.2307/2963000.

I quote:

The daguerreotypes, which were taken for Agassiz in Columbia, South Carolina, in 1850, had two purposes one nominally scientific, the other frankly political. They were designed to analyze the physical differences between European whites and African blacks but at the same time, they were meant to prove the superiority of the white race. Agassiz hoped to use the photographs as evidence to prove his theory of "separate creation," the idea that the various races of mankind were, in fact, separate species. 

Although there are still vestiges of Agassiz's theory being put forth today in the form of racism, current genetic testing has shown the homogeneity of the human race as it exists today. However, that is not the basic issue raised by the present controversy over the photos but inherent issues of racial prejudice are obviously the reason why this lawsuit has garnered so much media attention.

For many years now, I have been aware of the use of old photos and documents by certain universities, archives, and museums for revenue enhancement. This is the practice of these institutions to claim "ownership" of old photos and documents and restricting access and use of these items behind a paywall. This is not an issue of copyright. Documents and photos, such as those being considered in the present lawsuit, are clearly not subject to any claims of copyright protection although a claim of copyright is commonly used as an excuse for creating the paywall especially after the original photos or documents have been incorporated into publications and sold by the institution as has been done in this case by Harvard University.

The above lawsuit seems to raise an issue of "ownership." Some of the questions I would ask are as follows: Who owns the photos? What constitutes ownership of old documents and photos? How does one acquire ownership of an old photo or document? Is possession of a photo or document sufficient to acquire commercial rights to its republication and exploitation? Can a person acquire ownership of personal property merely by possession?

Copyright law is designed to protect the originator of a work but has evolved into a complex legal system that ends up mostly protecting the rights of the "publisher" of the work. In the present case, I have yet to see that the originator or photographer who created the original daguerreotypes has been identified. It is also not yet clear how Harvard University acquired any rights to the photos other than the fact that they were "found" in a storage area of the Peabody Museum on the University campus.

What I have found, time and again, is that the university, library, museum, archive, or whatever, uses the artifacts it has "acquired" for commercial purposes assuming, I am certain, that their possession gives them the rights to do so. Reports here indicate that at least one of the photos in question was used for the cover a Harvard University book. See "Harvard Profits From Photos Of Slaves, Lawsuit Claims."

In the United States, the rights conferred by mere possession of personal property (everything that is not real property) are determined by Property Law. To begin an analysis of the status of the ownership rights to the photos it will probably be necessary to determine who "owned" the original photos. However, there is another legal principle that ownership can be acquired by possession over an extended time.

Another fundamental issue of the lawsuit is whether or not the distant heir of the person or persons portrayed in the photos has any rights at all to the photo. Did the original subject of the photos acquire any rights of ownership and could those rights have passed to that person's heirs? Does the person who claims a right to inherited property have any duty to establish a right to inherit or is there some other method of acquiring ownership or possession?

We can assume that the plaintiff in the above lawsuit is not the only descendant of the subjects of the photographs. What rights do the other descendants have? How does the lawsuit establish the rights of all the other unknown heirs?

The issue that I am mostly concerned with assumes that the institution in question, here Harvard University, can acquire ownership of the artifact. But how does the institution acquire the sole right to reproduction of a work that is clearly not protected by copyright law? Doesn't giving these institutions the right to control the publication or reproduction of the artifact a de facto copyright without any basis in the law? For example, suppose I go to a library that has a collection of very old books, say 1700s or before, and I say I would like to take photographs of the books' contents. Can the institution stop me from taking photographs? Apparently, some institutions think they can and do. For example, access to original documents in the U.S. National Archives is very limited and copies are strictly controlled. See the instructions that begin with "Plan Your Research Visit." Of course, there are good arguments for maintaining control over the documents, but in the absence of an active digitization effort, the National Archives has absolute control over who, where, and when the documents can be viewed and copied even though almost all U.S. government documents are not subject to copyright claims.

The claim made by the plaintiff in the Harvard lawsuit is similar to the issues addressed in the American Antiquities Act of 1906. It seems to me that this plaintiff is asking for a court-ordered extension of the Native American Graves Protection and Repatriation Act (NAGPRA), Pub. L. 101-601, 25 U.S.C. 3001 et seq., 104 Stat. 3048, is a United States federal law enacted on 16 November 1990. As an institution that receives Federal funding, Harvard may fall under the provisions of this act. But then the issue would become whether the photos fall within the Act's provisions and whether the plaintiff has standing to make a claim under the Act.

Well, I thought that you might like to know some of the issues involved in making such a claim.