Made in a portrait studio at the request of Louis Agassiz, a renowned Harvard biologist out to prove the inferiority of people of African descent, the images have been the subject of scholarly exposes and intellectual property skirmishes since they resurfaced in 1976 in the attic of the university’s anthropology museum. Now they are the subject of a lawsuit brought by a Connecticut woman who says she is a descendant of two of the enslaved people in the photographs, and wants what she sees as her stolen family property back.
The lawsuit involves charges of profiteering and exploitation, calling the images “spoils of theft” and Harvard’s “dominion” over them itself the equivalent of slavery.
But to scholars, it also raises broader moral questions. Who owns African-American history: the generally white-dominated institutions that house many of its traces, or the descendants of the enslaved? And who, if anyone, should control — and profit from — it?
The lawsuit, which demands that Harvard relinquish the daguerreotypes and pay unspecified punitive and emotional damages, faces an uphill battle. Kevin Mattei, a lawyer on Long Island who represents auction houses, said that “slavery was a travesty, but the law is crystal clear.”
“The person who hits the shutter button and takes the photograph is the one who owns the copyright on the image,” Mattei said. “That’s 100 percent the law, and it’s been the law forever.”
As for the question of who owns the physical daguerreotypes, Mattei said that the only way the plaintiff could claim ownership is by proving that the photographer had given them to the enslaved people who sat for them, Renty and Delia, rather than to Agassiz.
But to some scholars of slavery, legal arguments are not really the point. The lawsuit, they say, needs to be understood not just in the context of law, but in the broader history of African-American dispossession.
“The only thing enslaved people owned was their souls,” said Daina Ramey Berry, a historian at the University of Texas and author of “The Price for Their Pound of Flesh,” a study of the monetary value of enslaved people’s bodies through their life cycle, including after death, when their corpses were sometimes sold.
“They might be traded, gifted, deeded, sold or mortgaged,” Berry said. “But you could not touch their souls.”
Barbara Krauthamer, co-author of “Envisioning Emancipation,” a 2013 photographic history of the transition from enslavement to freedom that begins with reproductions of the portraits of Renty and Delia, said she was conflicted about the lawsuit.
“The scholar in me wants to make sure history is preserved so we can teach it and share it,” Krauthamer said. “At the same time, I understand feeling like your family history has been torn away from you. That’s the legacy of the African-American experience. Your personal history is owned by someone else.”
American archives are full of material relating to enslaved people, which has become increasingly important as more scholars focus on the perspective of the enslaved, not the enslavers. Even records made by whites for racist purposes, like the Agassiz photos or advertisements offering bounties for runaway slaves, can be mined for clues to how the enslaved thought of themselves.
Some of the material held by institutions was created or collected with the permission of the enslaved, but most was not.
“We cannot go back and change the circumstances under which all of this data was gathered,” Martha A. Sandweiss, a historian at Princeton who has written both about 19th-century photography and about universities’ entanglements with slavery, said in an email. “But we can work to ensure that the story of how this information was collected becomes a part of our archives too.”
Photographs, like the famous 1863 image of the lash-scarred back of an enslaved man named Gordon that was widely circulated by anti-slavery activists, may provide some of the most haunting documentation of slavery. They are also rare.
Early photography equipment was cumbersome, and portraits required a visit to a studio, where subjects would have to sit still for as much as an hour. Slaveholders also had little reason to want to photograph the people they enslaved.
But photographs of enslaved people may not be quite as rare as previously thought. Krauthamer, dean of the graduate school at the University of Massachusetts, Amherst, said that when she began researching “Envisioning Emancipation,” she was surprised by how many previously unknown images emerged from archives and private collections.
She was also surprised by how many collectors, particularly white collectors, contacted her and her co-author, Deborah Willis, about photographs they owned, but did not want reproduced or even described.
“That felt very awkward,” Krauthamer said. “They were basically saying, ‘I want to show you this photo of a black person I own, but I don’t want you to tell anyone I own it.'”
Harvard’s policies over the Agassiz images, which show their subjects stripped to the waist, seem to have evolved in response to shifting sensitivities. After they surfaced, they were shown at a number of art museums, including the Amon Carter Museum of Art in Fort Worth and the Los Angeles County Museum of Art.
Since 2002, the original daguerreotypes have not been lent out. But Renty’s image did appear on the cover of a pamphlet for a 2017 conference at Harvard about universities and slavery, where the plaintiff, Tamara Lanier, says she was offended to see it also projected on a giant screen.
And in recent years, Harvard has quietly abandoned the copyright claims on the Agassiz images that it used to aggressively enforce.
In 1996, the university threatened legal action against African-American artist Carrie Mae Weems, who had used them in a series exploring the dehumanization of the sitters. (Harvard ultimately agreed to accept a fee for each work sold, which it used to buy part of the series for its art museum.)
Molly Rogers, author of “Delia’s Tears,” a 2010 book about the making of the photographs, said via email that she got permission to reproduce them only after a long process that involved submitting a sample chapter. And in 2012, Harvard denied curators of a Swiss exhibition about Agassiz and racism permission to reproduce the photographs, citing their “sensitive” nature.
Today, however, Harvard asserts no copyright, and charges only a $15 fee for a high-resolution scan, which it provides for “academic, documentary film and museum exhibition purposes,” according to Rachael Dane, a spokeswoman for Harvard.
The Agassiz daguerreotypes “are all in the public domain,” Dane said. (The university has declined to comment on the lawsuit.)
While the images may now be freely available, scholars wrestle with the ethics of using them. In her recent book “In the Wake,” a study of visual and literary representations of blackness, scholar Christina Sharpe reproduces only a thin band of the portraits of Delia and another enslaved woman, Drana, showing just their eyes.
Berry said that she thought the daguerreotypes taken for Agassiz belonged in an archive. But if the conversation is limited to questions of ownership, she said, “we’re missing the point, which is how the enslaved thought about their enslavement.”
If Renty, Delia and the other people photographed for Agassiz had been given a say, Berry said, “what would they have wanted?”
To her, the answer is obvious. “They would have covered up and not taken those pictures,” she said. “If you look at their eyes, they look totally humiliated.”
This article originally appeared in The New York Times.