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.

Colonialism, Cultural Assumptions, Property Rights, and Land Law Reform

Robert Home, Anglia Ruskin University, has published ‘Culturally Unsuited to Property Rights?’: Colonial Land Laws and African Societies at 40 Journal of Law and Society 403 (2013). Here is the abstract.

Hernando de Soto, advocate of central registers of land rights, raised the possibility of Africans being culturally unsuited to property rights. This article argues that sub‐Saharan Africa's high proportion of tribal/communal land (as distinguished from private and public/state land) results from a combination of geography, history, and population distribution. External colonial rule created a dual system of land tenure that restrained private property rights in the tribal/communal land areas. The research draws upon archival evidence from the colonial land tenure panel chaired by Lord Hailey (1945–50). The finding is not that Africans are inherently culturally unsuited to property ownership, but that colonialism reinforced pluralistic forms of property rights, which create particular challenges to land law reform. 

The full text is not available for download from SSRN.