SJC taking up challenge to Harvard’s ownership of slave photos

IN 1850, Harvard professor Louis Agassiz selected seven slaves on a South Carolina plantation to be photographed nude, as part of his attempt to prove the theory of “polygenism.” The theory was that Whites and Blacks were parts of different species, and Whites were inherently superior. 

Today, no one disputes that Agassiz’s theory was wrong and his methods were despicable. But who owns his photographs? 

The Supreme Judicial Court will hear a case on November 1, Tamara Lanier v. President and Fellows of Harvard College, that will decide whether Harvard can keep the pictures – or whether pictures of two of the slaves, Renty and Delia, must be returned to their descendants. (Both slaves are referred to by their first names only throughout the legal briefs.) 

Lanier, who is Renty’s great-great-great granddaughter, is asking for the pictures to be given to her. “Harvard’s refusal to return Renty and Delia’s images to Lanier is a continuation of Renty and Delia’s enslavement and a perpetuation of Harvard’s legacy of white supremacy,” Lanier’s attorneys wrote in a court brief. 

The case has gotten national attention, coming at a time when institutions like Harvard are trying to figure out how to come to terms with problematic aspects of their history, like ties to slavery and racism. 

According to facts laid out in court briefs, Agassiz was a Harvard scientist and the university’s first head of science at its Lawrence School of Science. He wanted to scientifically prove the inferiority of Black people by showing that Blacks and Whites do not share a common origin. His argument was used to justify slavery in the US and abroad. 

Lanier’s brief says the seven Blacks that Agassiz chose from the plantation were brought to photographer Joseph Zealy’s studio against their will, then “stripped naked and forced into carefully chosen positions so that their likenesses could be taken from them in order to be used in furtherance of Agassiz’s despicable and criminal experiment.” The pictures were daguerreotypes, an early type of photographic process in which the subjects were required to remain in one position for a long period of time. 

The slaves included an older man named Renty Taylor and his daughter, Delia. 

The daguerreotypes were found in Harvard’s Peabody Museum in 1976, where the university says they had been since the 1930s, although where they were before then has not been traced. Harvard in 2017 used the Renty daguerreotype to advertise a conference on universities and slavery. 

Lanier learned about the prints while researching her family ancestry. After some back-and-forth with Harvard, she filed a lawsuit in an attempt to get the pictures returned. 

Lanier’s attorneys argue that Renty and Delia were forced to be part of Agassiz’s experiment, and property law should not reward wrongdoers “with the spoils of their wrongdoing.” Their brief says the slaves have an ownership interest in their photographs, which transfers to their descendant.   

But a Middlesex Superior Court judge ruled that Harvard owns the pictures.  

The core of Harvard’s argument, which the judge agreed with, is that the subjects of a photograph have no ownership interest in the picture. Ownership belongs to the photographer.  

Harvard’s attorneys say even if a photograph is taken without a subject’s consent and in “abhorrent circumstances,” that does not give the subject rights to the picture. “A contrary holding would chill important forms of expression protected by the First Amendment, undermine crucial public interests, and create insurmountable administrative problems,” Harvard’s attorneys write in their brief. 

Attorneys for Harvard also questioned the timing of Lanier’s complaint and whether Lanier can prove she is the sole descendent of the slaves. 

In an email, Harvard spokesperson Rachael Dane said the daguerreotypes are important historical artifacts, for which Harvard is committed to serving as an “ethical steward.” Dane said the Peabody Museum, in particular, has dedicated significant resources to developing practices for the care and treatment of sensitive collections that are rooted in active engagement with relevant stakeholders, including descendant communities. 

Currently, the daguerreotypes are used for academic and research purposes, which include being used in Harvard academic classes once a year, Dane said. She said Harvard has committed to greater public access to the daguerreotypes, and the university is open to exploring whether an institution with a collection that has a greater focus on African American history and culture would be interested in having them through a long-term loan.   

Reilly said if Lanier were to win the court case, Lanier has committed to finding an “appropriate” home for the daguerreotypes, which could potentially be a museum dedicated to slavery or African American history. 

Agassiz’s descendants have actually come out in support of Lanier. In a court brief signed by 33 of Agassiz’s descendants, the group asks Harvard to give Lanier the daguerreotypes and to publicly apologize for the damage Agassiz and Harvard have done.” 

“This gesture would begin an honest accounting of what is owed for Harvard’s historical support for slavery and elevation of Agassiz, who used his reputation and position at the university to enshrine the racist myth of white superiority,” attorneys for the scientist’s descendants wrote in their brief.  

The brief includes an impassioned plea for Harvard to acknowledge the harm caused by its relationship with slavery, both by accepting major donations from slaveowners and by paying Agassiz around $80,000, or approximately $1.2 million, in today’s dollars. “We do not choose our ancestry, but we can choose to learn from a history that has given us prestige, privilege, and wealth at the expense of others,” the descendants write. 

Several academics also filed briefs on Lanier’s behalf, arguing that from the perspectives of human rights and privacy, the photographs should be given to her. The academics also questioned the provenance of the documents, whether the museum can prove ownership, and whether it matters that the subjects of the photograph did not consent for Harvard to profit off them. 

A brief coauthored by archeology professor Dan Hicks of Oxford University and communications professor Nicholas David Mirzoeff of New York University argues, “Today, museum curators understand that where human remains and cultural objects were taken for the purposes of ‘race science’ that racial violence, dispossession, and objectification endures today for as long as reasonable, well-documented demands for returns are rejected out of hand.” 

John Roddy, an attorney who represents several of the academics, said the case is at the intersection of the law, archival procedures, and anthropological study, and it raises questions about the evolution of the law. Lanier’s attorneys have tried to argue that property law is a malleable concept that can be shaped by social, economic, and political considerations, while Harvard has argued that property law is more fixed and bound by precedent.  

The Massachusetts Newspaper Publishers Association weighed in on behalf of Harvard, arguing that giving the subject of a photograph an ownership interest in the picture would chill the First Amendment rights of journalists who take pictures to cover the news.