But Andrew, Whyyyyyy?

I receive regular feedback of the form, "But why, why do you care about these things?" and I am here today to offer, after a fashion, an answer.

First, obviously, like a child who has conceived an interest in dinosaurs, I am endlessly interested in the smallest detail of my chosen subject. This is just me. Obviously one can take photographs without any notion of a theoretical framework for, well, anything but certainly you don't need one for photographs. I am given to understand that quite a few photographs have been taken, despite the rather wiggly basis upon which the enterprise is perched philosophically. Even a few good ones.

But here is a real application, a real case where something of a robust basis actually might matter.

Here's an article that appeared on PetaPixel: Who Should Own Photos of Slaves by Allen Murabayashi, who is a pretty smart and level headed dude. It's about some daguerreotypes in the possession of Harvard University, photos of some slaves, made in somewhat objectionable circumstances, under the aegis of some profoundly discredited theories.

Murabayashi and Jacobs (the podcasters in the embedded podcast) bring up material around looted art and artifacts, but mostly those disputes are rooted in property rights, and there's a clear point of looting. The resolution is to unwind the chain of ownership to the point of theft, and that's roughly the end of it. While ethical concerns arise, they are not the whole of the basis. In this case, the legal basis of ownership is perfectly clear: the daguerreotypes belong to Harvard, the images themselves as intellectual property are public domain, but high resolution scans are closely held by Harvard and not generally available to people who don't sign contracts with Harvard.

There's a whole bunch of shit here, most of which isn't really immediately relevant. We may assume that the legal situation, however unsavory, is in Harvard's favor. Harvard does, after all, own an actual law school.

The legal situation, however, is not the point.

The arguments given or cited in the PetaPixel piece are all built by hand-waving around peripheral ethical concerns. The subjects were slaves, they did not (could not) consent. Harvard charged a bunch of money for high res scans, etc. There's a great deal of badness invoked, and presumably that leads us to... some kind of result or another. Someone oughta do somethin'! I have not read the book they talk about in the podcast, but I've read the article and I've listened to the podcast, and all the talk avoids the issue of what a photograph is, and how its social weight functions. Everything is about who made the picture, why, and how. There's a lot of "raising interesting questions" but no actual serious attempt to provide an answer.

The general conceit is that the people who made these things were so very very terrible that someone ought to be compensated. Which, you know, I feel like there may be a few steps missing in the middle of the argument there.

So let's try to work out what the hell is actually going on. Because, well, we actually do have in this little blog here something of a theoretical basis for what a photo is and what it does. Maybe it'll help clarify something.

The point is that photographs do have social and emotional weight. They are talismanic. They evoke feelings, reactions, and so on, and that is the domain in which we are working. The legal case seems to be trying to apply these things in a court of law which is, um, interesting? I guess? But beside the point, I don't actually care about the merits of the suit, whether they're based on law or on emotion.

These pictures are pretty recognizable. Not only have many many people already seen them contextualized as photos of American slaves, most people who have been steeped in American culture (i.e. everyone) would likely guess "slaves?" when they see the photos. The photos are recognizably old (in style and method) they are of black people, and the subjects don't look like they're having their portraits taken: on account of they're naked or partly so. They look exactly like the kind of anthropological-ish studies that they are.

So these photos are likely to be broadly read in a profoundly weighted way, right out of the gate. They evoke a dark history. They make us uncomfortable, right off.

At least one person appears to be convinced that two of the people depicted are in fact her ancestors, people she "knows" through her family's oral history (well, at least one of them she "knows" in that fashion, the details are not clear to me and not important.) For Ms. Lanier, the dark history evoked by these photos overlaps with a dark history from her family's oral traditions.

Whether the "Renty" in the photos is her ancestor or not, these photos serve to reify her family history. They are talismans, in effect, which evoke that past, which turn it from "some shit my mom used to talk about" to something palpable, something real. The photographs conjure Renty and Delia, she is in a meaningful way in the presence of her ancestors — who were slaves, who were humiliated, who were forced to strip for these photographs.

Ouch, huh?

It isn't that the photo of Renty contains a piece of Renty, like some fucked up Horcrux, but we human animals, we East African Plains Apes, react to it a little as if it did. We treat it as a kind of talisman that embodies, in some loose sense, something of Renty. The fact that this is not literal but rather cultural does not mean that we ought to ignore it. Money and property rights are also a cultural constructs, and nobody suggests that we ignore them.

I mean, I "get" the photos, at a distance. A descendant of slaves would probably get it at a closer distance, and Ms. Lanier gets it right in the face, arguably pretty hard. From a legal point of view, again, this seems irrelevant. It sucks, but lots of things suck, and it's not the law's job to make you feel good about yourself. So, again, we're not in legal territory, but in social.

Ok, so the "image" as an abstraction, probably best seen on the printed page (daguerreotypes are tiny and seem to involve a lot of squinting) has this emotional weight for Lanier. Hold that.

The physical object, the dageurreotype, because of the nature of the process was actually there when Renty and Delia were photographed. This physical artifact was literally in the actual machine that made the picture. The photons that caused the visible chemical changes literally bounced off of Renty and Delia's skin.

I am loathe to characterize the process of photography as violent, but however that may be this was — at best — a weird day for Renty, and for Delia, and the physical metal plate was part of the actual mechanism of whatever went down that day. Was it humiliating, or just another shitty day at this shitty existence? For all we know Renty and Delia thought it was great because they weren't picking cotton, I dunno, and neither does anyone else. The point is that something happened that day, something in the life of two slaves, and these metal plates were first actually there and second an integral part of what happened.

Is Lanier, for instance, traumatized by these things? I dunno. Certainly within the envelope of normal reaction there is an intense emotional reaction so there's no reason to dismiss, a priori, whatever intense emotional reaction she might choose to relate.

So what should be done?

Seeking legal remedies in this sort of essentially social situation seems sort of weird, but I guess there's no other way to force Harvard to respond? Ideally this would land in some sort of mediation or arbitration in which they don't try to sort out what is legal but rather what is right, what has grace, what is polite and seemly. What leaves the world better than it was before.

Suppose I were asked to mediate, or preferably to dictate. I'm good at telling people what they ought to do.

Well. We can certainly, as the kids say, honor the emotional impact of these things. Lanier specifically, but also society broadly, feels the emotional and cultural weight of these pictures. Harvard ought to, as a matter of decency and of respect, make their high resolution scans freely available if they have not already. It's tempting to propose Lanier ought to have some control over them, but in the first place this seems to be a futile gesture, and in the second place western society as a whole has long decided that things of this kind ought naturally to transition to the public domain in the fullness of time. I see no reason to proceed in contradiction with that principle.

There is no putting this genie back in the bottle, but it strikes me as seemly of Harvard to at last cede control over this pictures. While that control cannot usefully be given to Lanier, it seems reasonable to suggest that at least nobody else should claim it.

Arguably Harvard deserves some compensation for doing the scanning work, but it appears that they've been paid pretty well already, so perhaps we should declare that moot. Art collections routinely make scans available for a fee, and it looks from here in the cheap seats that, while they should be compensated for doing that (because making scans of Art is indeed in the public interest, but costs money to do) but that these scans should likewise pass into the public domain after some decent interval (again, because this best serves the public interest.)

As for the physical artifacts, I am torn. Not that photography is literal violence, but what are ones rights with regard to a knife which murdered a parent? What about a tree or stone that, by accident, fell and injured us, or a relative? What if the stone fell and, somehow, inspired us? If someone said "I would like to have that stone because of its meaning to me" surely we would say "well, sure, why not?" It's a matter of social grace and respect, not a matter of law, not a matter of some well defined code.

This is complicated by the fact that, whatever rights Lanier might have here, under whatever theory, must apply equally to a host of others. Surely Renty and Delia's living descendants include more than one person, and surely all have more or less equally the same rights.

Certainly, I think, we generally feel that some sort of concession ought to be made, again in the interest of decency and respect more than anything else. Surely the same sentiment applies as "this frying pan belonged to your grandmother, I think you should have it" here, at least? And perhaps moreso, on the grounds that the photograph, this daguerreotype, has doubly (both as image, and artifact) a peculiarly evocative power? Do we not hand down even more tenderly and certainly photos than frying pans?

But to whom do we hand these down, and does Lanier even truly want these fragile things?

If I were the decider I would likely offer up what Murabayashi and Jacobs suggest, transfer to a suitable institution. Suitable in the sense of being capable of caring for these artifacts, but also suitable in the sense of respect and decency. Some institution approved by Lanier and the other heirs. In addition, I think a good quality reproduction of the artifacts could and should be made available to those same people, upon request, at no charge, as Harvard has evidently already made their money.

But the basis for all of this isn't legal, at all.

It's based entirely on the basis of an acknowledged emotional and cultural weight that a photograph possesses. This in turn points the way toward what is kind, what is decent, what is polite, rather than what is legal.

If you are an absolutist and think a photograph is just a thing, without weight, then to hell with Lanier. It's Harvard's all the way. Also, fuck off, you should probably not read my blog because you are dumb.

If you think a photograph is a literal weapon of savagery, a device of violence, well then you should probably seek to make laws about how photographs of people don't respect copyright at all but belong irrevocably and for all time to the subject and their heirs, that being the logical consequence of such a position. And, uh, ditto.

If you think (correctly) that a photograph is more than a thing; that it has social and cultural weight; that it falls short of being some terrifying engine of destruction; but that more importantly that it falls short of being an own-able thing (apart from physical objects which exhibit an instance of the photo, which obviously can be property:) then you might lean toward decency, generosity, toward choosing a path based not on law but on what is socially graceful.

And this is where a theory of photography leads us. Because of a photograph enjoys a certain kind of special emotional weight, because of its specific and special way of working (elucidated elsewhere in this blog, and anywhere else that responds to my relentless whining), a photograph ought to enjoy a somewhat special status, a social and cultural status that a little like property rights, but both weaker and not really the same as.