She recently wrote a piece about the daguerreotypes of some specific enslaved people, which photos are held by Harvard, which photos Harvard is being quite dickish about, and which photos are the subject of a legal fight on behalf of one Tamara Lanier who claims with some justification to be descended from at least one of the people in the photos. This is now all lit up on twitter as some of the usuals are doing their usual things.
Having glanced at the twitter arguments, I think I am going to simply ignore them. They don't even rise to the level of coherence, being a mass of self-contradictory silliness.
Azoulay's piece, however, which you can read here: The Captive Photograph is worth our time, in my opinion.
A general theme we are going to encounter is that Azoulay and everyone else is muddling legal and moral arguments up. The legal situation is perfectly clear, the moral one is murky. This is not a show-stopper here, we do see situations in which a moral outrage leads to the construction of new law, that's normal and expected. It would be nice if people would stop muddling them up — and anyways the moment you try to make a legal argument here you're wrong, because the legal situation is crystal clear. The correct path is to make a moral argument, and then argue that the law should be altered to align law with morality.
Anyways, let us proceed.
Azoulay begins with a summary of the case, and introduces the use of the verb "to seize" to describing the taking of a photograph, which is a fascinating rhetorical flourish, and speaks to the strength of her underlying argument in ways we shall see in due course. She moves on to talk about the return of Art looted by Nazis, and the return from museums of looted artifacts to entities in the originating regions. She also talks about crimes against humanity, specifically the Shoah and the colonial project.
There is immediately a difficulty here, because the restitution of objects is, at least in legal terms, largely unrelated to the crimes against humanity which formed the backdrop against which the looting occurred. In legal terms, as far as I can tell, the restitution of objects is simply returning that which was stolen to the court's best guess at who might now have possessed it had it not been stolen. It's a straightforward unwinding of the act of looting.
The backdrop or atrocity surely colors the thing morally, but we're on dangerous ground to propose that you don't have to return shit you stole as long as you were nice about taking it, and I genuinely don't think anyone wants to go there. It is an inevitable consequence of the reasoning that shit looted in the context of a crime against humanity is special, and definitely ought to be returned. It's not impossible for push through here, but one needs to be careful, at least, to avoid the "theft is OK if you're polite" landmine.
At around this point you might notice that Azoulay is not actually making an argument. She is throwing stuff against the wall, to see if something sticks. Unlike many of her peers, though, the material she's tossing can be assembled into an argument without too much effort.
I don't know if the lack of dot-connecting is just a tic, or a sign of respect for the reader, or if Azoulay recognizes that her argument is a bit of a mess and therefore doesn't actually want to try to mortar it all together into the somewhat tilted structure it naturally forms. I suspect a bit from column A and a bit from column B. Be that as it may, I will attempt to construct the argument she is implying:
She wants to argue specifically that the daguerreotypes of Renty and Delia (and some others) are looted objects, taken against the backdrop of a crime against humanity, and that therefore the general structure of, say, the return of looted Art should be rolled out. At this point her use of the verb "to seize" with reference to taking a photograph becomes clear: she wants to treat the photographs as looted (seized) objects, so she's warmed us up a bit with the verb. This kind of rhetorical flourish always suggests to me that the author is unsure of their actual argument. Apart from the quibbles noted above, she has a serious problem in that the daguerreotypes are not looted objects. As things they were never in any meaningful way owned by the subjects, despite the use of the verb.
You can argue that it's not the silver plate itself that was looted, but rather the "image" that was looted, that abstraction which looks like Delia, looks like Renty. This is consistent with contemporary thinking, and sure, I will stipulate that. Those things were definitely "seized" in a meaningful way.
The trouble is that Azoulay doesn't want to argue for the return of the image, which is at this point unambiguously public domain anyways, she wants to argue for return of the physical object. So, she kind of willfully muddles the two up. She repeats several times that the photograph is a social document, that it is not an own-able thing. This is absurd if you take the word "photograph" to mean the physical embodiment, so.. surely she's talking about the abstraction of "image?" Right? But no, she's not.
Azoulay appears to be trying to forcibly drag the free-floating (arguably) non-own-able abstraction of "image" and apply to to the physical object. To claim that somehow the physical manifestation of a photograph is not own-able seems bizarre and counter-productive here, and if taken to the logical conclusion would be, um, disruptive to certain industries to put it mildly. If I glue a photograph to a car, or a house, or a can of beans, does the car, house, or can of beans become non-own-able? Indeed, cans of beans already have photographs on them, can we just take them, because they're not own-able?
Yes, this is a reductio ad absurdum but the point is not that beans should be free, but rather that Azoulay's argument isn't as strong as it might seem. This is, I think, the third element I have located of Azoulay's essay which is subject to an obvious reductio. This isn't math, so these aren't fatal, but this rather makes one go "hmm."
Moving on, she makes some arguments that slavery is a crime against humanity, which, sure, fair, and which appears to support her general theme that restitution is somehow more justified, or urgent, as a result of that.
Somewhere around here the attentive reader might notice that the argument serves rather more strongly a case for the destruction of the photos, as objects that should never have existed and were made as a direct result of evil, conceived in evil on multiple axes. Since, again, this is not Azoulay's desired outcome she has to rescue them.
At around this point things become somewhat weird. Azoulay drags out the idea of "index" in new clothing, and attempts to make an argument that the daguerreotypes are specifically and physically entangled with Delia and Renty, and therefore ought to be treated as something like avatars of those people. They are in some literal or almost literal sense, the people themselves. While they should not have been made, now that they have been made they are imbued with some quality which means that they are now precious, magical, objects.
This gets tossed into the blender with the weird idea that because we didn't, in 1850, have established case law about who owns what regarding a photograph that somehow all photographs are up for grabs. This is manifestly silly. Ownership does not rely on case law. Note, again, the muddling of legal ideas with moral ones.
As an aside, it is maybe worth pointing out that while photographs are not in any meaningful way equivalent to their subjects as objects, they are talismans which conjure the subject. This is not the same thing. With a portrait of you, I can conjure your presence: I can create an experience which is something like you being here. I am not, however, literally bringing you here. Your half of this social interaction does not exist, you are unaffected.
Azoulay then spins out these themes of photographs as non-own-able objects, and these specific photographs as literally family members, to conclude that the photos should be "freed" and returned to Tamara Lanier who will not "own" them but rather tend to them. It's a very appealing set of imagery here, but looked at calmly it feels a lot like the wheels have fallen off this carriage.
Do all physical embodiments of photographs justly belong to their subjects? Should we return all photos to their subjects, or the descendants of same? I can think of several archives that would object. The crime against humanity business appears to be an effort to fence things off a bit, but I'm not sure it works very well.
So, yes, you can kind of stitch the bits and pieces together into an argument, and there's certainly many things brought up that are worth a think. It's not a terrible piece. It is, manifestly, the result of trying to bolt together an argument to produce an outcome, rather than a coherent analysis leading to a result. Azoulay simply wants the photos given to Lanier, everything else is stage dressing. As stage dressing, it's a fair effort, though.
It's not a great piece, either. It's a kitchen sink of stuff the author hopes you might find persuasive, and it muddles up (seemingly on purpose) a bunch of things.
I think the legal arguments should simply be discarded. That dog don't hunt. Move on.
I am not at all sure that the restitution of looted objects is salient either, largely because these situations are largely entangled with legal issues and, well, see above.
I don't think the crimes against humanity angle is well used here, but I think it is necessarily the basis of a moral argument.
The proper argument, I think, is that humanity has long held the social idea that apology and restitution is an appropriate response to wrongdoing. Insofar as the return of looted Art is related to the Shoah, it is an apology and an attempt to make right a wrong. The legal case is not built on that, as near as I can tell, but the moral case is.
The best available proxy for the offender makes apology and a gift or a return to the best available proxy to the victim, as a social act which to a degree unwinds the harm done by the original wrongdoing. This is an ancient tradition, across many cultures, and forms the moral basis for much of our law. The other basis being vengeance, and the two are normally combined in something we think of as "just punishment."
The proper argument therefore is this:
- Renty and Delia were enslaved and photographed as a specific crime, and also part of a vast crime.
- Tamara Lanier is the best available proxy for Renty and Delia as victims.
- Harvard University is the best available proxy for the offenders.
- Therefore it is socially, morally, just that Harvard make apology and restitution to Lanier.
- That apology should include the transfer of two daguerreotypes to Lanier.
Each line requires a bit of spadework to support (is Lanier the best available proxy? Does the apology due actually justly include these specific objects, or should it be cash, or an honorary degree, or whatever other things it is in Harvard's power to bestow? etc.) I do not think anything here is insurmountable.
Thinking in these terms might even produce a better solution than simply handing two silvered plates over.
Certainly this line of thinking produces the desired result (Lanier gets the photos) without all the weird logical consequences of Azoulay's argument. Not every photo belongs to its subject. Not every photo is an un-own-able free agent. Harvard owns the things, but gives them to Lanier as an act of contrition. No need to turn the world upside down here.