Opinion Who owns a photograph of people once considered ‘property’?

By Keith Greenwood

November 10, 2021 at 10:12 a.m. EST

(Chelsea Charles for The Washington Post)

Keith Greenwood is an associate professor of photojournalism and journalism studies at the University of Missouri.

Who owns a photograph? And what if the photograph depicts subjects who were once considered property themselves?

These questions are central to a dispute playing out in the Massachusetts Supreme Court. The images in question are of Renty Taylor and his daughter Delia, who were among several enslaved people at South Carolina plantations photographed by Joseph T. Zealy in 1850. Zealy made the daguerreotypes, an early photographic process done on polished metal plates, as commissioned by Harvard professor Louis Agassiz. Now, a descendant of Renty Taylor wants to claim them for her family.

Where the daguerreotypes ultimately reside is a complicated matter with repercussions for the thinking around the possession of photography — and around our history. Written descriptions, no matter how detailed, rely on the reader’s imaginings of what enslavement must have been like. Here, we can look into Renty and Delia’s eyes and see in them how things really were. At a contentious time when many Americans are seeking a fuller account of the past and how it informs our present, that connection is vital.

It’s true that, typically, the photographer who captures an image owns the creative work represented in it, barring some other agreement. If you are photographed in public, legal restrictions may limit how the image is used, but the photographer owns it. Even when you hire a photographer for portraits, you may receive prints or digital files, but the photographer retains ownership of the work that resulted in them. In this case, the photographer’s creative work would have passed into the public domain, making it freely accessible. But Harvard possesses the physical daguerreotypes of Renty and Delia Taylor and therefore can distribute or license them for use, and charge for the service. An initial court decision sided with the school in March, before an appeal brought the case to the state Supreme Court.

Still, these images weren’t taken in a public setting, and this is far from a typical situation.

Tamara Lanier learned of the daguerreotypes when she was researching her family tree. As Renty Taylor’s great-great-great-granddaughter, she sees the photos as family portraits. In her eyes, Harvard should not own them or profit from them, and she would like them transferred to her family.

But the images aren’t portraits, either.

Agassiz wanted the daguerreotypes to support studies based on the pseudoscientific theory that different races had distinct origins and evolved separately, an argument used to justify slavery and white supremacy. The role of the Taylors was to be specimens of an “inferior” race. They stare dispassionately at the camera. They are posed both facing forward and in profile, partially or completely unclothed. They had no agency in the making of the images or any ability to express or withhold consent. They were made to stand naked and stock-still for the half-minute or longer required to create the daguerreotypes.

In 1850, a racist Harvard scientist took photos of enslaved people. A purported descendant is suing.

Agassiz’s “science” was obviously bunk, so what do these photographs actually capture? They tell us nothing about a supposedly inferior race, but they tell us a great deal about the reality of slavery. The daguerreotypes preserve the experience of Black people in the antebellum South. Stripped of their freedoms and their clothes, the figures gazing out are avatars of a system in which people were property. Their eyes convey hurt and resignation — both the broad experience of slavery and the immediate indignity of being photographed in such a way.

The photographs are in some respects similar to ones made of Indigenous people in the late 1800s and early 1900s. Photographers dressed Native Americans and directed them to pose in ways they thought viewers back East expected to see them. For years, the images were thought to be authentic windows into the lives of Native Americans as their lands shrank and their people were displaced onto reservations. When the manipulations were discovered, the photographs were discredited as documentary evidence of Native Americans — but they became evidence of how photographers worked. As historical documents, they reveal the motivations of the photographers as well as the lack of agency on the part of the Native Americans.

The daguerreotypes of Renty and Delia Taylor and others have the potential to inform us in the same ways. Their intended purpose is long discredited, but their context transforms them into important visual records of the toll of slavery, and sources of information about those who enslaved people.

However the case resolves, both Harvard and Lanier have indicated a willingness to locate the daguerreotypes where they can be preserved and presented as a representation of one part of the experience of Black life in the United States.

That’s encouraging, because perhaps the most critical question is not who owns these painful images, but how they can best be shared with a country that needs to see them.