(CN) — Standing before the Massachusetts Supreme Judicial Court, attorney Josh Koskoff held up the book published by Harvard University. The cover of “From Site to Sight” shows a black-and-white image of a Black man, stripped to the waist, his eyes staring straight into the camera.
The man on the cover was Papa Renty, an enslaved man whom a Harvard professor photographed in 1850 while trying to prove a racist scientific theory.
It was one of the first images ever captured of an enslaved individual in the United States.
During the oral arguments held Monday, justices on the seven-seat bench noted Koskoff had difficult arguments to make in trying to revive a suit over the image and several others like it. The book was his visual aid in making them.
Koskoff represents Tamara Lanier, who says she is a descendent of Papa Renty. In a bid to confront Harvard with its history in bolstering racism, Lanier brought a lawsuit against the Ivy League institution and asked a judge to name her as the rightful owner of the daguerrotypes featuring Renty and his daughter.
Judge Camille Sarrouf Jr. dismissed the complaint in March, noting that the question whether the enslaved individuals had property interest in the photographs was one of first impression but that ultimately the subjects of photographs don't have an interest in the images.
Holding up the book, Koskoff said there were two biases at play in the case.
“One bias is the bias this court referenced as the unconscious bias that runs in the bloodstream of this country that we grew up with,” Koskoff said. “The other bias is an even more hidden bias, which is the bias that a lot of people have, which is a favorable bias, a bias for Harvard.”
The image on the book’s cover shows Renty as a slave. But the image is also a distortion, Koskoff said. While he was enslaved, Renty helped run worship services even though he risked beatings for holding them. Koskoff said the man taught himself to read and even voted after emancipation.
“Many of us would trust Harvard to give us the straight story,” Koskoff said.
But the question on many of the justices’ minds was how a woman from Connecticut could claim a property right to photographs taken about 170 years ago — how a right to body, a tort right, could become a property right that’s able to be passed down to grandchildren and great-great-grandchildren.
“I think you need to be specific here to be helpful,” said Justice Scott Kafker.
Koskoff said tort law is the big umbrella that encompasses property law as well.
“One principle very much in play here is that the wrongdoer can never be rewarded for their wrongdoing. That would turn tort law on its head,” Koskoff said.
Meanwhile, Justice Frank Gaziano wanted Koskoff to address the First Amendment implications of an individual having a right to an image taken of them. Weeks before, the Massachusetts Newspaper Publishers Association and New England First Amendment Coalition filed an amicus curiae brief saying, if the court found that individuals had an interest in the photographs taken of them, it would chill the ability for the press to publish images.
But Koskoff described that argument as a strawman. The First Amendment isn’t in jeporardy, Koskoff said, because the dispute is over the physical daguerrotypes “extracted from two people who had no say in the matter.”
Another attorney representing Lanier, Benjamin Crump, noted that at the time Louis Agassiz, the Harvard biologist, made the images, slavery had been abolished in the commonwealth since 1783 when the courts had ruled against it.
Crump, who has recently represented the family of George Floyd, detailed what he called the complicated history to slavery that exists at Harvard, which itself was once funded by a cotton trade reliant on slave labor.
He said Lanier wants to appear before a jury to argue that she has a greater possessory interest to the daguerrotypes than the Ivy League institution, that despite the challenges Black Americans face in doing genealogical research because of slavery she was able to identify her ancestors.
“The resource we're discussing here is not merely some image or some photographic negative, as suggested by Harvard,” Crump said. “Instead, we're discussing the culmination of a malicious and evil scientific experiment in a torturous conduct of slavery itself, in an attempt to legitimize an abhorrent concept that persons of color are property.”
In Harvard’s brief before the court, it argued that under common law, the photographer, not the subject, owns the photo.
The justices offered some difficult examples to Anton Metlitsky, the attorney representing Harvard, asking who would be the owner of images depicting someone who has been kidnapped, or instances of child pornography.
Metlitsky, of the firm O’Melveny, said the images end up being property of the state.
And while Renty and his daughter were subjected to crimes, Metlitsky said a judicial remedy would be blunt. Better would be a legislative remedy that could balance interests, similar to acts dealing with remains of Native Americans, for instance.
The question at this stage, Metlitsky said, “isn't who has the right to the photo, but whether the plaintiff does.”
It is unclear when the court will rule.
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