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Background

As reported in this Washington Post news article and many similar articles in other major news organs, a lawsuit has very recently been filed against Harvard University and various associated institutions, including Harvard's Peabody Muse am. The complaint is here This suit seeks possession of several early photographs ( daguerreotypes) of slaves taken in 1850.

Other news stories:

These photos were taken in an effort to help support the then controversial but respectable "polygenist" theory that different human "races" had separate origins. This theory is now discredited, and had been used to support racist views and actions. These daguerreotypes are believed to be the earliest extant images of slaves in the US, according to the story. They were taken at the instance of, and published by, then Harvard Professor Louis Agassiz, and remained in storage at the university.

Paragraphs 203 through 213 of count 1 of the complaint assert that the photographs were "unlawfully taken" because the subjects never consented to being photographed, and were not compensated. Those paragraphs further assert that Agassiz never had good title to the photos, and that thus neither did Harvard.They further assert that the plaintiff is the next of kin of the man shown in one of the photos, and as such is entitled to possession of and title to the original photos.

Count 3 asserts that under MA general laws Chapter 214, section 3A, use of these photos without the consent of the next of kin for "advertising and commercial purposes" is unlawful and actionable.

Count 4 asserts that Harvard's possession and use of these photos is unlawful under the 13th amendment to the US Constitution, which prohibits slavery, and was drafted and ratified after the end of the US Civil war, more than 15 years after the photos were taken.

For the purposes of this question I assume that the photos were indeed taken without consent, and that the plaintiff in the suit has correctly identified the subject of the photo, and is indeed the direct descendant of one subject and the surviving next of kin of another, although I gather that these statements are disputed.

This suit has just been field as I write, and has not yet been passed on in any way by any court, to my knowledge.

Questions

  1. is it plausibly the case that ownership of an original photograph would be awarded to the subject (or the subject's heirs) because the subject did not consent to the making of the photograph?

  2. Do Massachusetts laws indeed protect personality and publicity rights in photos more than 160 years old, if they were originally taken without consent of the subject, and are now used without consent from the subject's next of kin?

  3. Does the US 13th amendment give any private right of action to claim property obtained via ownership of slavery, or that may constitute a "badge of slavery"?

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  1. is it plausibly the case that ownership of an original photograph would be awarded to the subject (or the subject's heirs) because the subject did not consent to the making of the photograph?

No

The photograph belongs to the person who owned the photographic plate. Copyright in the image belonged (it has long ago entered the public domain) to the photographer. Subjects (then and now) have no claim on either.

  1. Do Massachusetts laws indeed protect personality and publicity rights in photos more than 160 years old, if they were originally taken without consent of the subject, and are now used without consent from the subject's next of kin?

No

The people in the photograph may bring a suit. These people are long since dead and their estates have long ago been wound up. There is no longer anyone with standing to bring such a suit.

  1. Does the US 13th amendment give any private right of action to claim property obtained via ownership of slavery, or that may constitute a "badge of slavery"?

No

In its entirety, the 13 amendment reads:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

It does not deal with the products of slavery at all.

  • 2
    Imagine if products of slavery were covered... how many megatonnes of cotton and other things did slavery produce over its years in the US? What happens to all of that? – user4210 Mar 22 at 1:55
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    Exactly so @Moo – David Siegel Mar 22 at 2:45
  • This is pretty much the answer that I expected, the widely reported suit simply left me astounded. The only one I was at all expecting a Yes answer to was number 2, as the statute does not explicitly say that the rights end with the subject's death, or indeed at any particular time. – David Siegel Mar 22 at 2:48
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    @DavidSiegel it occurs to me that the purpose of this suit is to get publicity - not to win – Dale M Mar 22 at 11:50
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    @hszmv: The ban on ex post facto laws is a restriction on statutes. It does not restrain the amendment process, which is only limited by explicit terms in Article V. Currently, the only extant such term shields the Senate from being abolished or reconstituted, and has nothing to do with ex post facto amendments. – Kevin Apr 15 at 17:01

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