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HARVARD WINS LAWSUIT AGAINST STEVE ELMORE

Nancy Stanley

CAMBRIDGE, MA  September 1, 2016 - A federal judge ruled last week that native art dealer Steve Elmore violated his contract with the Peabody Museum at Harvard University when he published more than 100 pictures of Peabody objects that he had been allowed to photograph for his research. The Court entered judgment ordering Mr. Elmore to pay the Museum $10,000.

“The Peabody brought the case after Elmore broke his contract by publishing research photographs in his book, and refused to discuss any correction or re-publication with appropriate photos and captions,” according to Ben Allison of Bardacke Allison LLP, the lawyer representing Harvard and the Museum. The Museum also objected that photograph captions in Elmore’s book did not identify the objects or meet Museum standards, and that the photography falsely conveyed the Museum’s approval, in violation of federal trademark law. “The federal judge had earlier ruled that Harvard was likely to prevail on its contract and trademark claims, and ordered a stop to any distribution of Elmore’s book,” Allison said.

Elmore made a variety of counterclaims in the lawsuit, alleging that Harvard had wrongfully declined his manuscript, was attempting to misappropriate his research, and was involved in a conspiracy against him. Based on these allegations Elmore claimed Harvard owed him millions of dollars. In separate rulings, the Federal Court analyzed Elmore’s allegations at length and concluded they were false, dismissing all of Elmore’s claims except a claim for $257 in travel reimbursement.

The day after the rulings were issued, the parties met and resolved the remaining issues in the case. The Museum forgave the $10,000 judgment and agreed to allow Elmore to sell a limited quantity of his book, provided that it carry the following statement:

The photographs attributed to the “Peabody Museum” or the “Keam Collection” were published without the Peabody’s permission or review, in violation of the author’s contractual obligations. Many of the images have been altered by photo-editing software. The Peabody does not verify that the images are accurate representations of the objects in its collections.

Similarly, photograph caption information was not reviewed or approved by the Peabody and does not meet Museum standards. The image on page 182 identified as a Peabody postcard is a screen shot from an old version of the Museum’s online database. This photograph was not approved for publication. The image in this book has been altered by the author to look like a historic postcard. The Peabody denies that any such postcard exists.

 “The Peabody Museum has been committed to the study of native art from around the world, most notably the American Southwest, for more than a century,” Peabody Museum Director Jeffrey Quilter said. “We believe in open access for researchers, but also stand by the claim that photographs taken for research purposes should be used for just that: research. We are grateful that the court agreed with our position, enabling the important scholarship that takes place each day at the Museum to go forward.”

The case dates back to 2010 when the Peabody welcomed Elmore to research a volume on its Keam collection, which he believed contained ceramics created by famed potter Nampeyo. Elmore signed an agreement promising that any photographs he took would be for research purposes only and would not be published. The Museum also invited Elmore to submit a manuscript on his research. Ultimately, upon review, that manuscript did not meet the goals and standards of the Museum and its Press, and it was returned to him.

In 2014, Elmore published his manuscript with more than 100 of his research photographs in violation of his contract not to publish them. In addition, he copied 47 photographs from another Peabody Museum Press volume, Historic Hopi Ceramics (Peabody Museum Press, 1981), and doctored them to appear as drawings. The Museum considered this a violation of copyright in its photographs, but the Court held that Elmore changed the photographs enough so as not to infringe.

Neither Harvard nor the Museum claimed any ownership of the traditional designs of any of the peoples represented in its collections. This was clearly stated in Harvard Peabody’s first court filing: Harvard does not claim any copyright in the designs depicted in the photographs, but Harvard’s copyright in the Historic Hopi Ceramics photographs does protect the original photographic rendition of each artifact.

The Peabody Museum at Harvard University has collected, preserved, and supported the study of native art from around world since 1866. The Museum welcomes both academic researchers and artists to study materials in its collections. The Peabody has also published dozens of works highlighting the stunning artistic achievements of Native American peoples, including volumes such as Historic Hopi Ceramics, which has been used extensively by regional potters as a reference work.

Santa Fe New Mexican's article from Sunday, September 4, 2016.