What We Talk About When We Talk About Ownership

Yxta Maya Murray, Loyola Law School, Los Angeles, has published From Here I Saw What Happened and I Cried: Carrie Mae Weems’ Challenge to the Harvard Archive at 8 Unbound: Harvard Journal of the Legal Left 1 (2013). Here is the abstract.

In the early 1990s, the artist Carrie Mae Weems appropriated daguerreotypes of enslaved people that are housed in Harvard University’s Peabody Museum of Archaeology and Ethnology. These incendiary images of Drana, Jack, Renty and Delia had been commissioned by Harvard Zoology Professor Louis Agassiz in the mid-1800s, supposedly in order to illustrate his theory of racial difference. However, Weems had signed a contract with the Peabody promising not to use the images without their permission, and she did not seek such approval before including the daguerreotypes in her now-famous series "From Here I Saw What Happened and I Cried." Harvard threatened to sue Weems on the grounds of copyright infringement and breach of contract, though when Weems invited Harvard to conduct what she understood to be a difficult conversation about law, history, and race "in the courts," Harvard demurred.
In this essay, I consider the copyright and contract claims that Harvard might have depended upon in its litigation. With respect to the copyright infringement claim, I query whether the fair use doctrine’s requirement that an appropriator "transform" borrowed images or text might have provided Weems with a defense. This question ushers me into an extended meditation on the meaning of transformation as it relates to art, history, law, seeing, and slavery. I also query whether Harvard actually owned these images at all; such property ownership proves the foundation for their contract claim. I conclude that Harvard did indeed own these daguerreotypes, but struggle against that determination, since this property was wrested from Drana, Jack, Renty and Delia through violence and atrocity. In the interests of peace, remembrance, and racial justice, I maintain that no valid property law should recognize such a chain of title. Borrowing from the Native American Graves Protection and Repatriation Act, I draft a proposed law that would recognize the relics of enslaved people as cultural property and require the federally funded museums that now own them to give them back to the descendants of America’s enslaved peoples.

Download the article from SSRN at the link.

Telling Stories About Law and Inequality On "The Wire"

Robert C. Power, Widener University School of Law, has published 'The Wire' and Alternative Stories of Law and Inequality in volume 46 of the Indiana Law Review (2013). Here is the abstract.

This Article examines 'The Wire' for what it says about inequality in the United States today and what society can do to bring about greater equality. Part I identifies several themes explored over the five seasons of the series — the failure of law enforcement in the inner city, the harsh life and inadequate education of impoverished children in such areas, and Baltimore as an example of inefficient and corrupt city government. Part II reviews the Rodriguez case to consider the extent to which it defined the nature and scope of the Fourteenth Amendment’s Equal Protection Clause in terms of funding and providing public services. Part III returns to 'The Wire’s' three themes to describe in detail how the stories depicted in the series stand as examples of inequality that are particularly corrosive to society. Part IV returns to law, with seven sections identifying possible responses to the unequal society portrayed in the series. 

Download the article from SSRN at the link.