Descendant can sue Harvard over images of enslaved father and daughter, SJC says

Harvard Yard at Harvard University in Cambridge, Mass., March 16, 2022.KAYANA SZYMCZAK/NYT

The state’s high court ruled that a descendant of Renty Taylor and his daughter Delia, subjects of the earliest known images of enslaved people in the United States, cannot own the images but can sue Harvard University for emotional distress.

The university engaged in “extreme and outrageous” conduct when it refused to consider Tamara Lanier’s claim she was emotionally damaged by the public display of her ancestors, the ruling said.

But the Supreme Judicial Court refused to enter the uncharted legal territory Lanier and supporters fervently wanted it to explore, rejecting her request for title to four daguerreotypes of father and daughter taken in 1850 to support the white supremacist theories of Harvard professor Louis Agassiz.

Those daguerreotypes continue to enrich Harvard today, Lanier has argued.

“This court cannot remedy a perceived wrong based solely on a strongly held moral belief,” Chief Justice Kimberly S. Budd wrote in a concurring opinion. “An appeal to the abstract notion of justice by itself cannot justify the judicial creation of new rights and remedies. Courts are required to reason from analogy to existing, concrete applications of the law.”

The court ruled 7-0 in favor of allowing Lanier to sue for negligent infliction of emotional distress. But it also ruled that Harvard retains physical and legal title of the four images, taken when Delia was stripped to the waist and Renty was forced to disrobe.

“We are gratified by the Massachusetts Supreme Court’s historic ruling in Tamara Lanier’s case against Harvard University for the horrible exploitation of her Black ancestors, as this ruling will give Ms. Lanier her day in court to advocate for the memory of Renty,” said a joint statement from Lanier and her attorneys, Ben Crump and Josh Koskoff.

“It is with great pride that we continue this legal and moral battle for justice against Harvard, as we look to repair the damage and degradation that they have caused Tamara Lanier, her ancestors, and all other people of color exploited by their institution,” the trio said.

The SJC decision comes after Harvard University formally acknowledged its historic connection to slavery, which included enslaved people living on campus and money from investments in plantations built upon slavery enriching the school.

The decisions by the state’s high court frustrated Jarrett Drake, a Black doctoral student in the Department of Anthropology at Harvard who has researched and studied the Renty/Harvard issue since at least 2019. He wrote a paper on it for his studies and an amicus brief filed with the court.

He said he was perplexed that the court would greenlight Lanier’s right to sue for emotional distress yet deny her ownership of the images.

“I don’t understand why the court is acknowledging the pain that she’s endured but not granting her access to the remedy that would alleviate that pain,” Drake said. “I perhaps naively held out hope that the property interests would be transferred to Ms. Lanier. It is disappointing, but it’s not entirely surprising.”

He added, “She’s not after money. She’s not after recognition. She’s just wanted these images back for over10 years at this point.”

The images were rediscovered in the Peabody Museum in 1976 and they remain at the museum, where a spokeswoman said they were too fragile to be routinely handled — but they will still be shared digitally, including in future publications.

“The images are permitted for academic use, and reviewed upon request,” Peabody spokeswoman Rachel Dane wrote in an e-mail to the Globe. “We are reviewing the decision at this time.”

Harvard University did not respond to a Globe request for comment on the ruling.

The court’s opinion, Budd’s concurring opinion, and a separate concurring opinion by Justice Elspeth Cypher repeatedly and harshly criticized Harvard for its treatment of Lanier and her ancestors.

“Given the university’s horrific, historic role in the coerced creation of the degrading daguerreotypes, once Lanier approached Harvard as a descendant of the individuals depicted in these daguerreotypes, provided documentation to that effect, and requested further information, a duty to respond to her requests with due care was triggered,” Justice Scott Kafker wrote for the unanimous court. “Harvard should have known that its conduct toward the plaintiff would likely result in emotional distress and that its conduct was the factual and legal cause of her distress.”

Budd also rebuked Harvard, especially given its recent acknowledgment of its ties to slavery, for violating its own standards and international code of ethics for museums and research institutions that discover they are in possession of stolen items or have items with important emotional connections to descendants.

“Harvard’s refusal even to discuss respectfully with Lanier her request to possess the daguerreotypes of Renty and Delia flies in the face of its aspirational report,” Budd wrote. “It brushed her off, publicly dismissed her ancestral claim, and continued to display and profit from the daguerreotypes without Lanier’s input or involvement.”

In its ruling, the court noted that Lanier first wrote to Harvard in 2011, inquiring about the images and her possible ancestral connection and should have sued the university by 2014 under the statute of limitations for property litigation. She sued in 2019.

Moreover, under existing law, the court said, ownership of images belongs to the photographer who takes them, not the people who appear in the photos.

“A descendant of someone whose likeness is reproduced in a daguerreotype would not therefore inherit any property right to that daguerreotype,” the SJC said.

Travis Andersen of the Globe staff contributed to this report.