Editor’s Note: This endorsement 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.
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The ownership of images has a long and nuanced legal history, which has evolved dramatically in recent years as cultural standards and photographic technologies have rapidly advanced. As chief curator and deputy director at New York’s International Center of Photography (2000-15), a leading museum of photography and visual culture, I was frequently called upon to evaluate the changing status of images and, in particular, questions of copyright and property rights concerning photographs. The important case of Lanier v. Harvard is unique in that it hinges on the image-based property rights of nineteenth-century enslaved persons and the potential transfer of those rights to a documented descendant.
The debate centers on a group of fifteen daguerreotypes of the claimant’s ancestors currently held by the Peabody Museum of Archaeology and Ethnology at Harvard University. These photographs of enslaved African plantation workers were taken in Columbia, South Carolina, in March 1850 by a daguerreotypist named J. T. Zealy on commission from Harvard professor Louis Agassiz, a leading biologist of the time. The daguerreotypes consist of front and side view images of his subjects, a practice later widely employed in anthropological photography. The claimant’s ancestors, Renty Taylor and his daughter Delia, were forced to pose for the photographer in varying states of nudity. These were not portraits. The goal of this photography was to record with seeming objectivity the factual appearance of the individuals as scientific specimens, with a typological focus on the body shapes and skull formations. In my essay “Black Bodies, White Science: Louis Agassiz’s Slave Daguerreotypes” [American Art 9, no. 2 (Summer 1995)], I argued that the daguerreotypes were deliberately dehumanizing depictions, to promote Professor Agassiz’s racially biased and scientifically spurious theory of “separate creation,” the notion that Africans evolved as a separate species of humans, both anatomically distinct from Caucasians and, Agassiz claimed, intellectually inferior.
The individual subjects of these daguerreotypes were enslaved; they had no legal status at the time, and in the making of their images they were denied basic human rights. At issue is the legality of the enforced taking of these daguerreotypes. A secondary issue concerns Harvard University’s subsequent commercial use and exploitation of these photographs. Finally, while much contemporary legal and ethical practice regarding photographic representations accords rights to the creator or in some cases to the owners of an image, increasingly courts and legal scholars have pointed to the rights of subjects when photographs depict people. I urge the court to consider current debates around the legal and moral status of the right of privacy (the right to be left alone and not have your photograph taken without consent) and the right of publicity (the right to control the public use of your own image). The specific legal challenge this case affords is whether violations of contemporary standards for the subject’s right to privacy and right to publicity can be applied to nineteenth-century individuals who were violently denied those rights in the first place. In my opinion, restitution of these images to the subjects’ legal heir would constitute not only a legally valid form of redress but also a morally justified reparation.