A fallen statue of Louis Agassiz, the Harvard Professor who commissioned the daguerreotypes of Tamara Lanier’s enslaved ancestors in 1850. The statue, at Stanford University, famously fell and landed upside down during an 1906 earthquake. (via Wikimedia Commons)
Editor’s Note: This article is part of a special edition that Hyperallergic published on the ongoing legal case to return the photos of Renty and Delia Taylor to their descendants.
Tamara Lanier’s battle for the ownership of her ancestors’ images is forcing the law into the uncomfortable position of considering a specific historical context — the institution of chattel slavery.
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In 1850, Harvard University professor Louis Agassiz commissioned Joseph T. Zealy to produce daguerreotypes of enslaved men and women for his studies of polygenism — the discredited theory that each race has a separate origin, usually invoked to support White biological superiority and scientific racism. Nearly two centuries later, with a greater sensitivity to the circumstances of their creation and enduring racial inequities, the images are difficult to characterize. The word “portraits,” with its connotation of honorable remembrance, feels ill-fitting. Calling the figures “sitters” implies a granting of consent that was absent from the photographs; “subjects” at least nods to the violent dynamics of subordination. But the term Agassiz preferred when referring to Alfred, Delia, Drana, Fassena, Jack, Jem, and Renty, who were enslaved in South Carolina when they were forced to strip naked and pose for Zealy’s pictures in the service of white supremacy, was “specimens.” When he saw the daguerreotype of Renty, writer Ta-Nehisi Coates likened it to a “hostage photograph.”
Long before she learned of that photograph’s existence, a Connecticut woman named Tamara Lanier knew the man as “Papa Renty” from stories about her ancestors she heard in childhood. In 2010, when her mother died, Lanier set out to document her family’s lineage, enlisting the help of her friend and self-taught genealogist Richard Morrison. Their search inadvertently led to Harvard’s Peabody Museum of Archeology and Ethnology, which owns 15 of Zealy’s daguerreotypes, an early form of photography exposed on heavy silvered copper plates. Two of them depicted Renty, her great-great-great grandfather, and his daughter Delia.
Between 2009 and 2016, the Peabody Museum charged licensing fees starting at $50 for use of the photos, in addition to an order processing fee for providing the images themselves. According to a Harvard spokesperson, in 2017 the museum dropped the permission fees for any works in the public domain, “which included the Zealy daguerreotypes.” A $15 order processing charge was still in place until 2020, when the Peabody moved to a “semi-open access model,” no longer collecting processing or permission fees for digital media unless new photography is required. Additionally, Zealy’s daguerreotypes are still sold on commercial photography platforms including Bridgeman Images US and Alamy, but the university “does not receive (and has never sought to receive) any monies from these sales,” the spokesperson added. Lanier argues that Harvard has profited from the photos in other ways, such as by reproducing an image of Renty on a 1986 anthropology textbook it sells for $40.
Earlier this year, a court granted Harvard’s motion to dismiss the lawsuit, citing legal precedents establishing that “any photographs are the property of the photographer.” The law does not bestow the subject of an image — or their ancestors — a possessory interest in that image, even if it was taken under duress. Lanier appealed the decision, and oral arguments will be heard at the Massachusetts Supreme Court this coming Monday, November 1.
In a nation permanently scarred by the legacy of slavery and the persisting scourge of anti-Black violence, Lanier’s battle for the rights to the likeness of her enslaved ancestors could have monumental implications far beyond the field of visual representation, informing legislation on cultural property and even reparations for Black Americans.
The Peabody Museum of Archaeology and Ethnology in in Cambridge, Massachusetts (via Wikimedia Commons)
Zealy’s photographs, among the earliest of enslaved individuals in America, had been gathering dust in the Peabody Museum’s attic when a former staffer came upon them in 1976, accompanied by labels with the names of their enslavers and the plantations where they were forced to work. Thus commenced what Lanier’s attorneys call Harvard’s “decades-long campaign … to exploit them for prestige and profit,” not only through licensing fees but by controlling their reproduction in books, conference pamphlets, and other materials. In 1996, the university notoriously threatened a copyright suit against artist Carrie Mae Weems after she used the daguerreotypes in her series From Here I Saw What Happened and I Cried (1995–96), a group of 33 red prints overlaid with text that emphasizes the dignity and humanity of the subjects by giving them a voice. “You should,” Weems famously retorted in response to Harvard’s threat to sue. “And we should have this conversation in court.” The university retreated but collected a fee for each work sold, eventually using the funds to acquire part of the series for its museum collection.
The school does not dispute that Lanier is a direct descendant of Renty, but insists that it has a property interest in the pictures. Ultimately, however, many of those who support Lanier believe that the question of whether a photograph’s subject does or does not own their image is magnitudes less important than acknowledging the Black American experience.
“When Abraham Lincoln and the US government freed Black people in America, we didn’t have any land, we didn’t have 40 acres and a mule, we at least believed when we were freed we had the right and ownership to our person, and incumbent in that was our image,” Benjamin Crump, one of Lanier’s attorneys who also leads the George Floyd family’s legal team, told Democracy Now. “But Harvard is telling Ms. Lanier and her family, ‘No, no, Renty still belongs to us. He’s still our property.’”
From their resurfacing almost five decades ago to the present, from Weems’s artistic appropriations to Lanier’s claims of ownership, the haunting silvered plates have prompted intellectual and personal reflections on the nature of consent in image-making.
In a 2013 essay for Unbound: Harvard Journal of the Legal Left, Loyola Law School Professor Yxta Murray examined the Weems case and concluded that no valid property law should recognize a valid chain of title when the property — or images — were wrested through violence. She stands staunchly in support of Lanier.
“As I stated then, I believe it’s stolen property. It’s the proceeds of robbery; it belongs to the subjects of the photographs and their descendants,” Murray told Hyperallergic. “Any court that does not consider this issue in its proper context — that is, by recognizing that these images were taken during slavery, through violence and sexual assault, through other forms of atrocities — is doing a dereliction of its duties. […] [It’s] time to begin the process of atoning and compensating, and recognizing how this country was built.” There are precedents for reparations in the US, she continued, such as those paid for the internment of over 100,000 Japanese Americans during World War II.
Though far from perfect, models for repatriation exist in the institutional space, Oxford University Professor Dan Hicks and New York University Professor Nicholas David Mirzoeff explained in an amicus brief filed in support of Lanier. The restitution of human remains of Indigenous people and the return of stolen cultural property “has rightfully become a long-established, normal, formal part of our professional curatorial procedure and practice in anthropology and archaeology museums,” they wrote. In the case of Nazi-looted art, the landmark 1998 Washington Principles “shifted the onus of responsibility” for evidence of confiscated property from the claimant to the holding institution.
But some scholars worry about surrendering archival materials in public collections to private ownership, especially in the case of the Zealy daguerreotypes, which are painful but invaluable primary sources attesting to the legacy of racism. “Can any one person be the heir of these photographs, or does the responsibility for them fall to all of us to protect them as archival relics of history, to be studied, pondered, and reckoned with?” asked Henry Louis Gates Jr., an eminent critic and director of the Hutchins Center for African and African American Research at Harvard, in a foreword for the book To Make Their Own Way in the World: The Enduring Legacy of the Zealy Daguerreotypes (2020). Co-published by the Peabody Museum and the Aperture Foundation with contributions by Weems, NYU Center for the Humanities Associate DirectorMolly Rogers, and over a dozen others, the publication was in the works prior to Tanier’s filing; the 485-page volume is a tangible testament to the scholarship that archival discovery can yield.
In “Blood at the Roots,” an article about the Lanier case for the Journal of Contemporary Archival Studies, Jarrett Martin Drake posits a conception of archives not as simply material objects, but as manifestations of the power dynamics of disinheritance and dispossession. Drake, a PhD candidate in social anthropology at Harvard University, told Hyperallergic that defending Harvard’s role as warden of the daguerreotypes “doesn’t stand up to much intellectual muster.”
“As is, the daguerreotypes are not accessible at all. The number of restrictions the museum puts on people to access the originals is quite intense,” he continued. To delay their degradation, there are limited hours of light they can be exposed to per year, Drake said. “The photographs are literally fading away with each day. There’s no amount of an institution holding on to it increasing the likelihood that it will stick around.” If anything, he added, Lanier has led a wider audience to discover the images and stories of Renty and Delia.
In their brief, Hicks and Mirzoeff wrote that Harvard’s defense is largely built on “slippery slope” arguments that risk distracting the court from the unique details of the case. Indeed, Lanier’s demands are forcing the law into the uncomfortable and unfamiliar position of considering a specific historical context — the horrific institution of chattel slavery — over the tenets of contemporary intellectual property law. While recognizing the “continuing impact” of enslavement in the United States, the court that granted Harvard’s motion to dismiss admitted that it found itself “constrained by current legal principles.”
“‘Slippery slope’ arguments have been made during each step of social progress in this country,” Meredith McKinney, a Harvard Extension
School degree candidate who founded the Harvard Coalition to Free Renty in 2019, told Hyperallergic. “From desegregation of schools to Women’s Liberation, to Civil Rights, to marriage equality, this type of claim holds no merit, as so amply demonstrated throughout history.”
The coalition comprises over 700 individual Harvard University students as well as members of the Generational African American Student Association, the Undergraduate Student Council Black Caucus, and the Harvard College Democrats, collectively representing around 3,000 students.
“Moreover, if more archival materials are identified which were collected using threats of violence, removing consent, dignity and autonomy from the subjects, the ‘creators’ should not own or profit from their exploitative acts,” McKinney said. This, she added, is the “true slippery slope and precedent we should collectively be concerned with.”
Even Agassiz’s descendants agree. In 2019, a group of 43 individuals representing distant relatives of the disgraced eugenicist urged Harvard University President Lawrence S. Bacow to relinquish the daguerreotypes. It is time, they contended, to “name, acknowledge and redress the harm done by Louis Agassiz.”
As with many foundational institutes of higher education across the country, profits from the slave trade and related industries helped to build Harvard. In 2019, the university also announced a $5 million initiative at its Radcliffe Institute to examine the legacy of slavery within the school community. Earlier this year, the Peabody found in its holdings the remains of 15 people of African descent who were likely alive when enslavement was legal in the US. Bacow announced the formation of a steering committee on human remains in the museum’s collections to “consider options for [their] return.”
“In my view, all the conferences, the reports, the research, the committees mean absolutely nothing if you have a situation where there is something that was taken from someone, and if they were genuinely remorseful, they would give it back,” Drake told Hyperallergic. “By returning the daguerreotypes to Tamara, Harvard would actually be taking some real steps towards addressing its legacy of profiting from slavery.”
Original Source: Legal Precedents or Reparations? Lawsuit Against Harvard May Decide Who Owns Images of Enslaved People (hyperallergic.com)