Private Transitional Justice—The Case of the Slave Daguerreotypes

Posted in: Human Rights

In Lanier v. Harvard, a Massachusetts district court affirmed Harvard’s ownership over several slave daguerreotypes, including those of Papa Renty, despite the horrific and now criminal conditions under which the pictures were taken. The court rejected the plaintiff’s creative arguments—treating this as a case of ordinary justice and applied ordinary law. In so doing, the court denied Renty’s descendant’s ownership of the only remaining physical object linked to her great, great, great, great grandfather; her request for reparations from Harvard’s past profits from the photos; and her ongoing desire to control the display and distribution of the photos. This post suggests that as we await appellate arguments and legal resolution, Harvard ought to take its newly minted commitment to private transitional justice seriously and reconsider its approach. This post also suggests that the contested ownership of the daguerreotype presents an interesting possible conflict between two pillars of transitional justice: reparations and memorialization.

To begin, what are the roots of this conflict? During the antebellum period, noted biologist Louis Agassiz developed the scientific theory of polygenism, the now debunked idea that different human races derived from wholly different origins. Adherents often also believed that the black race was not only distinct, but lesser. Unsurprisingly slavery proponents championed the theory to justify their ongoing practices. In order to bolster this theory, Agassiz picked out several enslaved Africans on a South Carolina plantation to be photographed and studied as scientific evidence. A local photographer stripped the enslaved individuals and took their pictures, some of the earliest remaining pictures of enslaved persons in America. After Agassiz or his son donated the daguerreotypes to Harvard, they languished until discovered in a museum cabinet in the 1970s. Despite the finder’s urging that ancestors be located, Harvard retained the images for tightly controlled viewings.

For several decades, Harvard granted access only to the privileged few. As Yxta Maya Murray documented, when noted African American artist Carrie Mae Weems viewed the pictures, she was shocked by the Harvard staff’s indifference to their content and the lack of contextualization. Weems took unauthorized photographs of the daguerreotypes and made the artwork From Here I Saw What Happened and I Cried. She superimposed text over enlarged versions of the daguerreotypes “to heighten a kind of critical awareness around the way in which these photographs were intended” and “give[] the subject another level of humanity and another level of dignity that was originally missing in the photograph.” While Weems hoped that Harvard would then see and confront the horror she saw, Harvard instead threatened to litigate over a contract prohibiting unauthorized reproduction and to enforce what later turned out to be a lapsed copyright. After Weems indicated a willingness to be sued so that the moral issue could be publicly litigated, the two sides ultimately agreed that Weems could distribute the art, but that Harvard would get a cut of each sale.

Fast forward to Tamara Lanier, a descendant of Papa Renty, who upon learning of the existence of the pictures, wrote to Harvard requesting they help her confirm her research relating to the subject of the photographs. According to Lanier, Harvard was uninterested and unhelpful. Without any identification or contextualization, Harvard continued to use the image including on the cover of a publication devoted to reckoning with the history of slavery and as a speaker’s background for a Radcliffe conference in which Ta-Nehisi Coates discussed reparations. Lanier then filed suit for ownership of the photographs and reparations for any money Harvard previously made from the photographs. Upon learning of the suit, several of Agassiz’s family members wrote an open letter supporting the return of the photographs to Renty’s descendants.

Harvard contends that it has no obligation to return the photos. And Harvard’s legal position is entirely unsurprising. It may be thinking not just of this case, but of future cases. For instance, if it capitulates here, what happens to its other holdings such as its Native Americans photographs some of which might have also been taken under deeply problematic settings.

Harvard rightly notes that existing law supports its view. The lower court recently affirmed that the basic principle that all rights reside in the photographer rather than the subject of the photo applies even under circumstances as horrifying as this one. The court declined invitations to consider the daguerreotypes as akin to revenge or child pornography. The lower court concluded that “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” but pretty directly invited the appellate courts to speak to the issue, suggesting where its sympathies, if not its ruling, lie. In turn, the appellate court might accept the offer to carve out a special exemption to photograph property rights. It could decide that since enslaved persons were unable to deny consent to the photographs and the daguerreotypes at issue document what would now be a crime, they ought to be treated differently from other photos. Even though one could try to craft a narrowly cabined exception, I suspect the appellate court will have little appetite to upset a very settled area of law with possible line drawing questions and unforeseen consequences. Nor has the Massachusetts legislature indicated any interest in involving itself in this dispute.

But perhaps this is not an ordinary case that ought to be governed by ordinary law. Given its origins, the double injustice of mistreating enslaved people and using them to prove a theory of their lesser-than status, I believe this case calls not for ordinary justice but ought to be governed by the principles of transitional justice. Transitional justice provides a useful frame to help guide what ought to happen in a society dedicated to dealing with its gross and widespread human rights violations of the past such as South Africa after apartheid, Germany after the Holocaust, and Colombia after its brutal civil conflict. Under such circumstances, transitional justice calls for accountability, truth telling, reparations, and memorialization so as to transform the society, restore respect to those individuals and groups who were subject to gross and widespread human rights violations in the past, and commit to the idea of “never again.” While the U.S. federal government has not formally committed to a widespread project of transitional justice regarding slavery, we do see a hodgepodge of government and non-governmental actors engaging in various components of transitional justice such as Evanston’s housing reparations program and the Equal Justice Institute’s lynching memorial.

Harvard has in fact recognized the need for and committed to its own implementation of private transitional justice. In 2007, Harvard students began work on the Harvard and Slavery project “that explores the lived history of those enslaved individuals with connections to Harvard.” In 2019, Harvard announced a new multimillion-dollar commitment to “encourage our broader university community to think seriously and rigorously about the continuing impact and legacy of slavery and ensure that discussion and understanding about our past can help us think differently and move us ever closer to a Harvard where we can all thrive.”

In light of that commitment and given the broader principles of transitional justice, what should Harvard do? Harvard contends that it is the best steward of the delicate materials and but for the lawsuit, would use the photographs to facilitate education on the horrors of slavery. In other words, Harvard defends its retention of the photographs as the best way to uphold the memorialization prong of transitional justice. Harvard has extensive resources and an extensive reach. But Lanier’s lawyers too have spoken some about touring the photographs as part of an educational campaign. In thinking about which party is better situated to memorialize Papa Renty, it is worth considering Harvard’s future efforts in light of its past limitations on viewing, its early efforts to stop Weems distribution, and its recent failure to contextualize the photographs such as 2017 conference in which “the program lauded Agassiz—making scant mention of his pursuit of racist pseudo-science and mentioned that after the photograph was taken, Renty returned to his invisibility.”

But even if one believes that Harvard is better positioned to carry out memorialization goals, it still leaves open the question whether that ought to trump a claim for reparations from Renty’s descendants. Transitional justice tells us both are important, but does not provide an a priori determination of how to resolve questions if the two conflict. So what is the reparations claim? Lanier argues that her family is owed both the picture and whatever money Harvard has made off showing pictures of her great, great, great, great grandfather’s humiliation. One could imagine a “split the baby approach” in which Harvard keeps the photographs and gives some compensation to Lanier. But such an approach ignores the root of Lanier’s property claim which stems from the exceptional circumstances. Because of slavery and its practices, Renty was a man dispossessed with little if any physical inheritance to pass down to his family. This picture is part of his legacy and his descendants want the picture itself and control over its display.

Lanier v. Harvard is a potent reminder that if the legal system is not going to embrace the exceptional law of transitional justice, many of the questions raised by transitional justice will simply be punted to private actors who may or may not choose to work through them.

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