Civil rights attorney Benjamin Crump urged the state’s highest court Monday to end the “bondage” of Renty and Delia, an enslaved man and his daughter photographed in 1850, by awarding control of the images to their descendant.
Harvard University owns the daguerreotypes, which were taken to support the white supremacist theories of Louis Agassiz, then a major Harvard professor. Crump represents Tamara Lanier, a Connecticut woman who contends that she is entitled to the portraits as Renty and Delia’s descendant.
“Harvard has kept Renty and Delia enslaved for 170 years,’' Crump told the Supreme Judicial Court during oral arguments. “Renty and Delia were condemned in life as the property of their slave master. We are beseeching this court not to condemn them in death as property of Harvard for all eternity.”
Renty and Delia were forced to pose naked in South Carolina, where Renty was enslaved on the B.F. Taylor plantation, according to Lanier. In 1976, the images were rediscovered in a corner cabinet in the attic of Harvard’s Peabody Museum. Harvard used Renty’s image on the cover of a 2017 book on anthropology and during a conference it hosted that year about universities and slavery, the Globe has reported.
“There will not be another one like this in your lifetimes,” Joshua D. Koskoff, who also represents Lanier, told the SJC about the issues raised between Lanier and Harvard.
Lanier’s lawyers were sharply questioned by several justices, principally Justice Scott L. Kafker, who demanded to know how the horror of slavery in the 19th century pertained to contemporary ownership rights.
Kafker also asked that if Lanier decides against making the images publicly available, wouldn’t academic researchers lose a critical tool to understanding the harm that individuals suffered from slavery? How should the court view the issue if it were raised by a descendant of a Holocaust survivor photographed in a Nazi death camp?
“Those pictures are terrible. They’re hurtful to anyone who looks at them,’' Kafker said of images of the Holocaust. “But that helps condemn the acts by looking and studying them. ... Does the public have a First Amendment interest in this?”
Koskoff said no.
“I think if you asked Renty and Delia, they would say, ‘You know what? We didn’t want to be part of the public’s education,’ " he said. “You can never subordinate the abuse of somebody in the name of education.”
Harvard has argued that Lanier, whose lawsuit was denied in the lower courts, has not legally established that she is a descendant. Anton Metlitsky, a lawyer for the university, said Lanier learned of the familial connection in 2011 but waited too long to bring legal action and should not be given a second chance.
“The question, I think, at this stage ... isn’t who has the right to the photo, but whether the plaintiff does,” Metlitsky told the justices.
The justices also questioned Metlitsky’s arguments on Harvard’s behalf. He was asked by Kafker and Justice Frank M. Gaziano why the school should benefit from a crime — the SJC in 1783 ruled slavery illegal in Massachusetts — to enable its continued control. Wouldn’t that mean a child pornographer could keep photos they took, too?
“Your simple point is that just because you’re the photographer, you get to keep the pictures,” Kafker said. “There are exceptions to that rule ... It’s not so clear in these really horrible circumstances, what your property rights are.”
Metlitsky defended Harvard by saying, “the general principle is that the property interest belongs to the photographer unless it’s taken away from the photographer under a criminal proceeding or something like that.”
Harvard, which routinely does not comment on pending litigation, said in a statement that they appreciated Lanier’s providing the context for the images. The university said it is willing to install them in an appropriate museum or public place “and increase their access for communities of color and all Americans. The active litigation has prevented us from moving forward with this goal.”
In court papers, the Massachusetts Newspaper Publishers Association and the New England First Amendment Coalition both urged the SJC to reject Lanier’s legal arguments.
“It is a well-settled tenet of common law that the subject of a photograph has no property interest in the photograph,’' the news organizations said in a joint brief. “It is in reliance on this basic tenet that journalists employ still and video photography as essential tools in their coverage of and reporting on the news, as they have done so for more than 150 years.”
The justices took the matter under advisement.