Descendant of enslaved people fights for property rights to their daguerreotypes commissioned by Harvard scientist

By Adetokunbo Fashanu.

Harvard University, founded in 1636, is one of the many American institutions that has to confront and atone for the consequences of its historical ties to slavery. From reviewing its collection of remains of enslaved African-Americans, held at the Peabody Museum of Archeology and Ethnology, to removing insensitive lyrics from its alma mater and renaming buildings, Harvard is no stranger to this nationwide reckoning. Research by Harvard students indicates that at least three Harvard presidents owned enslaved people.[1] Harvard has publicly acknowledged these ties and has made some effort to address its past in a 2017 major public conference, Universities and Slavery: Bound By History, “exploring the long-neglected connections between universities and slavery.” [2]

However, the University falls short of “confronting the reality of a past in which academic curiosity and opportunity overwhelmed humanity” (to quote from current Harvard President Lawrence S. Bacow’s own words). Consider the case of Lanier v. Harvard (“the Lanier case”), which can be seen as a step backward in Harvard’s quest to make amends for its past connections with slavery.

The Case involves daguerreotype portraits of two enslaved people – Renty and Delia Taylor -, which had been taken on a South Carolina plantation in 1850 and used by the Harvard biologist Louis Agassiz to formulate his now-discredited ideas about racial difference, known as polygenism.[3] After Tamara Lanier, a retired chief probation officer from Connecticut, discovered she was a descendant of Renty and Delia and learned of the daguerreotypes, she asked Harvard to relinquish these artifacts to her in a letter to the then Harvard President Drew Faust. Harvard declined.[4]

On March 20, 2019, Lanier filed a complaint against Harvard listing seven causes of action. She alleged that the photographs were taken without Renty’s and Delia’s consent and thereafter unlawfully retained by Harvard. The Case probes who has a property interest in photographs: – the photographer or the subjects of the image?

FACTS

Harvard University employed Swiss natural scientist Agassiz from 1847 till his death in 1873. Agassiz supported the theory that different racial groups did not share a common origin but were fundamentally and categorically distinct. To support his views on polygenism Agassiz embarked on a tour of South Carolina plantations in search of subjects – racially “pure” slaves born in Africa – to collect empirical data. At the B.F. Taylor plantation in Columbia, SC, Agassiz selected several enslaved men and women to be photographed, including Renty Taylor and his daughter Delia. Renty and Delia were photographed naked to the waist from the front, side and back without their consent or compensation. These pictures were commissioned by Dr. Robert W. Gibbs of Columbia. Agassiz returned to Cambridge with the pictures, retained his professorship and served as director of Harvard’s Museum of Comparative Zoology until his death in 1873.[5]

In 1976, the pictures were discovered at Harvard’s Natural History Museum by archivists.[6] These pictures are the earliest known photographs of American slaves. Lanier alleges that following the discovery, Harvard commenced a decades-long campaign to wipe away the history behind the images and exploit them for prestige and profit by displaying the photographs at the Peabody Museum.[7]  

Lanier said she had grown up with tales of an African ancestor known as Papa Renty but did not know the photographs existed until about 2010, when she began tracing her genealogy.[8] In March 2011, Lanier wrote a letter to President Faust about the daguerreotypes and asked to be kept informed about how they will be used, and upcoming events related to the daguerreotypes, which Harvard agreed to do.[9] However, Harvard failed to keep Lanier informed about said events, such as the aforementioned 2017 conference.[10] After completing her own research and gaining a certification confirming that she is a direct descendant of the Renty and Delia, in a letter addressed to Faust on October 27, 2017, Lanier requested to have the daguerreotypes immediately relinquished to her.[11]

After Harvard declined to relinquish the daguerreotypes, she filed a lawsuit against the school on March 20, 2019. 

ARGUMENTS

In her complaint, Lanier stated that this was a case that concerned ownership of the actual tangible daguerreotypes, not ownership of an intangible copyright.[12] However, unfortunately, copyright law states that Agassiv, as the author of the images, has ownership rights to the “actual tangible daguerreotypes,” even though Renty and Delia did not consent to their creation.[13]

Lanier’s complaint further alleged that Harvard to this day continues to derive indirect profits from slavery.[14] For example, Renty’s image is used on the cover of a $40 anthropology book, which was originally published by Harvard in 1986.[15]

In defense Harvard argued that “there is no authority … suggesting that Lanier has suffered a legally cognizable harm.” They stated that for Lanier to have a property interest superior to theirs, she must have some property interest in the first place, and nowhere in her opposition does she explain the nature of that interest.[16]

COURT RULING

On March 1st, 2021, Judge Camille Sarrouf granted Harvard’s motion to dismiss Lanier’s claims in Middlesex County Superior Court, which she treated as a bundle of claims, some property-related claims and non-property related claims.[17]

The court held that three of the property related claims were not filed in a timely manner, i.e. that Lanier let the statute of limitation run out. Under Massachusetts General Laws c. 260, 2A tort and replevin actions “shall be commenced only within 3 years next after the cause of action accrues.” However, regardless of the Plaintiff’s poor timing, the court also found that her claims failed as a matter of law.

The central question addressed by the court is whether Renty and Delia had a property interest in the photographs. The Court stated that “it is a basic tenant of common law that the subject of a photograph has no interest in the negative or any photographs printed from the negative.”[18] The court noted that while “fully acknowledging the continuing impact slavery has had in the United States, the law, as it currently stands, does not confer a property interest to the subject of a photograph regardless of how objectionable the photograph’s origins may be.”[19]

According to the holding, a photographic image is not generally an intangible property right protected by a conversion claim; conversions claims are rejected even if the photographic image was a serious or offensive invasion of privacy.[20]

The judge also rejected Lanier’s claim that Harvard had exploited the photographs for financial gain — for example, when the school put Renty’s image on the cover of a book — asserting that the right to control commercial use of the photographs had expired with the deaths of the subjects. Furthermore, the court stated that Lanier could not bring this claim in the first place because she lacks standing to do so on Renty and Delia’s behalf, G.L.c. 12, § 11I states that “Any person whose exercise or enjoyments of rights… has been interfered with … may institute and prosecute in his name and on his own behalf a civil action….”

Finally, the court found that Lanier failed to state a claim for relief. In order to state a civil right claim under Section 11I, she would have to demonstrate that Harvard used “threats, intimidation or coercion to interfere with or attempt to interfere with the rights secured by the Constitutional laws of the U.S or the Commonwealth of Mass.” The court found the complaint failed to do so. [21] Two weeks later, on March 17, 2021, Lanier appealed the ruling to the Supreme Judicial Court.

TAKEAWAY

So far, the impact of Lanier case’s impact on the broader issue of slavery reparation is unclear. The University expects to retain property rights to the daguerreotypes and exploit them without compensating Lanier or her family. If the heirs of an enslaved person do not have standing in court to obtain reparation for “the continuing impact” of slavery, who does? 

Lanier stated to The New York Times that she hoped her lawsuit would draw interest to the bigger issue of who owned the “cultural property” of enslaved people and that she had been working with Harvard students on legislation that would protect the rights of families like hers.[22] The question is sound but there are no definitions of “cultural property” offered.

However, in a statement, Harvard said that the photographs were “powerful visual indictments of the horrific institution of slavery” and that it hoped the court’s ruling would allow it to make them “more accessible to a broader segment of the public and to tell the stories of the enslaved people that they depict.” [23]

For now, the case was decided on procedural grounds. But why apply 21st century law of procedure to historical wrongs. Here the court repeated that it is the role of the legislature to make laws governing reparations for slavery in the U.S. One could say progress is slow or more symbolic than substantive where the law-makers are willing to make ceremonial reparations, such as making Juneteenth a federal holiday, but fail to enable impactful reparations towards the African American community.

For the time being, the case is pending on appeal.


[1] Fred Thys, Harvard Puts its Ties to Slavery on Display, Wburg (April 24, 2017).

[2] Adeel Hassan, Antigua Demands Harvard Pay Reparations for Benefiting From Slavery, The New York Times (Nov. 7, 2019).

[3] Jennifer Schuessler, Confronting Academia’s Ties to Slavery, The New York Times (March 6, 2017).

[4] App. for Def.’s Obj. to Mot. to Dismiss. 22-24, ECF No. 15. Lanier v. Harvard, No. 1981CV00784, 2021 Mass. Super. (March 1, 2021). [hereinafter Appendix].

[5] Memorandum of Decision at 1-3, Lanier. [hereinafter Memorandum]

[6] Schuessler, supra note 3

[7] Memorandum at 3, Lanier.

[8] Anemona Hartocollis, Images of Slaves Are Property of Harvard, not a Descendant, Judge Rules, The New York Times. (March 5, 2021).

[9] Appendix at A010, A012, Lanier.

[10] Hassan, supra note 2

[11] Appendix at A024, Lanier.

[12] Id. at A027.

[13] 1 Nimmer on Copyright §§2.08, 2.03[c]

[14] Mathew S. Schwartz, Harvard Profits From Photos Of Slaves, Lawsuit Claims, NPR. (March 21, 2019).

[16] Def.’s Reply Memo. In support of their Mot. to Dismiss at 1, Lanier. [hereinafter Def. Reply Memo]

[15] Doris Burke, Who Should Own Photos of Slaves? The Descendants, not Harvard, a Lawsuit Says, The New York Times. (March 20, 2019).

[17] Memorandum at 4, Lanier.

[18] Id. at 11.

[19] Id.

[20] See Ault v. Hustler Magazine, Inc., 860 F.2d 877, 883 (9th Cir. 1988); Brunette v. Humane Soc’y, 40 Fed. Appx. 594, 597 (9th Cir. 2002).

[21] Memorandum at 14, Lanier.

[22] Hartocollis, supra note 8.

[23] Id.

About the Author:

Adetokunbo Fashanu is a Summer 2021 Legal Intern at the Center for Art Law. She is currently pursuing a joint JD/MBA degree from the Cleveland-Marshall College of Law. She has an undergraduate degree from the University of Oklahoma in criminology. As an artist’s herself, Ms. Fashanu plans to practice as an intellectual property lawyer advocating for all types of artists.