Late last week a judge in Massachusetts’ Middlesex County Superior Court dismissed the case against Harvard University over the ownership of a set of daguerreotypes depicting an enslaved father, Renty, and his daughter, Delia. The images were commissioned by Harvard professor Louis Agassiz in 1850 in an attempt to further the (much-discredited) theory that people of African origin were inferior. Harvard discovered the images in one of its museums in 1976. The lawsuit was brought by Tamara Lanier, who claims that she is a direct ancestor of Renty (this claim is not disputed). She sued Harvard for ownership of the daguerreotypes stating that because the subject was one her ancestors, she is the proper owner of the images.
In his opinion, Judge Sarrouf noted, “It is a basic tenet of common law that the subject of a photograph has no interest in the negative or any photographs printed from the negative.” He continued, “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[.]”
This outcome does not come as a surprise. US law has long put property rights in photography, both the physical image and the copyright, in the hands of the photographer unless there is an agreement otherwise, like a commission agreement. Like anyone who owns a photograph or other property right, that person is allowed to dispose of it as he or she wishes, including donating it to a museum or university. To rule that is the subject of a photograph, or someone who happens to appear in one, is the owner of that photo would seriously undermine the rights of all photographers, whether amateur or professional.
So what can we do when confronted with a stark reminder of a brutal time in our history? We can hold Harvard accountable, making sure that they use the photographs in a humane and compassionate way that furthers our understanding of the terrible institution of slavery and not in a way that exploits Renty and Delia any further.