Providing Access to “Sensitive” Photographs: Archivists as Guardians of the Rights to Privacy

Providing Access to “Sensitive” Photographs: Archivists as Guardians of the Rights to Privacy

I was an intern at the Peabody Museum at Harvard when I was asked to participate in a viewing of some sensitive daguerreotypes. Not only sensitive in format, but in subject matter, these images are known as the Slave Daguerreotypes of Louis Agassiz. At the time, some scientists like Agassiz had theories about race, purporting that people of African descent were a different species of man. In order to evaluate and support these theories, slaves were forced to stand for photographic images showcasing their nude bodies, intending to display their differences from Caucasian peoples.

The images were beautiful in their technique and preserved condition, but disturbing as reminders of historical injustice. I was told by my supervisor that an artist in Europe had asked for permission to obtain copies of the daguerreotypes and use them in a show he hoped to put together on the topic of race. Although the subjects of the pictures would certainly be deceased by now, the museum denied this request on account of ethical concerns that the artist would be exploiting them for his own purposes of making a statement. The whole situation aimed a spotlight on the museum and began the discussion of whether the Peabody had the right to control access to the daguerreotypes in the first place, considering they were found in the museum in 1975, resembling what our textbook refers to as a “legacy collection” with incomplete documentation (Ritzenthaler, et al. 306).

The day that I was viewing the images came about as a result of a visiting lawyer preparing to speak about ethics at the university. She wanted to know how I reacted to seeing them, knowing the circumstances under which they were made. She asked me, very dramatically, if I wasn’t sickened and horrified, and how could we even have pictures like this?

I wanted to ask her in return: what else should we do with them? Certainly not sell them for a profit. Should we give them away? - To whom? And how could we ensure that they would be as well cared for, or protected from misuse? Should we instead destroy them entirely? I believe that route would be no different than attempting to erase slavery from the history books because it is too painful to read about. 

The SAA states in their privacy code of ethics:

“As appropriate, archivists place access restrictions on collections to ensure that privacy and confidentiality are maintained, particularly for individuals and groups who have no voice or role in collections’ creation, retention, or public use.  Archivists promote the respectful use of culturally sensitive materials in their care by encouraging researchers to consult with communities of origin, recognizing that privacy has both legal and cultural dimensions.”

I find this to be a bit of a blanket statement. It sounds very clear and direct, that archivists should be cautious and considerate when dealing with sensitive materials. However, the SAA does not provide answers to specific situations, and any good archivist should know each collection and institution will have unique cases. Aside from encouraging researchers to consult with experts and relevant communities when using collections, archivists should have a working knowledge of the current privacy laws.

Although the recent Visual Artists Rights Act (VARA) was created to protect the rights of the creative artist rather than the integrity of the subject, it also serves to prevent images from being manipulated by others. However, VARA has many loopholes concerning photographs, applying to a restricted category of visual artworks it covers only artistic photos created for exhibition after 1 June, 1991 (Ritzenthaler, et al. 312). According to a Harvard Law guide, VARA has limited rights and is subject to exclusions and waiver provisions that substantially erode its powers (Esworthy). Essentially, donors should be warned not to rely are VARA alone if they have specific worries about access to their photos.

Privacy laws do little to protect celebrities and public figures in the act of being photographed, so they are not going to do much more in protecting the images after they have been made. After a celebrity’s death, images of them under privacy restriction can be granted extensions. Celebrities also have the right to protect their likeness from use in a commercial exploitation without permission. Even after they die, celebrity estates may have control of their likeness for further protection (Nordhaus, 14).

With some exceptions, if no limit to privacy has been set by donors, most images lose their privacy restrictions upon the death of the person photographed. In many cases it may be unknown if the subject is still living and the archivist must do some detective work. In the example of the slave daguerreotypes, archivists can clearly surmise based on the time they were photographed, that none of the subjects are still living. However, given that they had no human rights to privacy when they were photographed, it does not seem respectful to take away privacy restrictions on the images now that they have died. The subjects being nude also raises ethical concerns, because these were not taken in an effort to be artistic. Scientific nudity - whatever that may be defined as - is looked upon with less concern, yet the daguerreotypes, although considered scientific by their creators, do not fit into this category today. 

Obscenity and pornography in photographs is not always clearly defined and prohibitive laws can vary by state. Images of child nudity are almost always considered obscene and providing access to them is a punishable offense. Adult nudity however, as mentioned above, may be approved if it can be considered artistic or scientific. Other images of adult nudity, perhaps of a personal nature in family collections, should be dealt with on a case by case basis with donor and legal consultation. Anthropological research is another frequent source of nudity in photographic collections. Informed consent from subjects should be obtained when documenting any sacred, private, or culturally sensitive material. As the textbook reminds us, “repositories should avoid causing cultural damage when possible” and take advantage of consultations whenever possible (Ritzenthaler, et al. 329).

An archivist can recruit help from experts, lawyers, and other relevant sources, but ultimately we are responsible for making a judgment about access and use for each collection. All of the advice I read for dealing with privacy restrictions seems to conclude that handling materials of even the slightest ambiguity comes down to informed opinion. In a society full of concrete rules, this may feel like a risky business model and cause outsiders to worry about our intentions, which brings me back to the visiting lawyer who was so concerned with the Peabody Museum’s possession of the slave daguerreotypes. I will rephrase my original questions to her and ask instead, “who else but an archivist is better suited to care for these images?”

We are the trained professionals and can offer the closest thing to a universal standard for privacy protection. Although we may not be experts of law, or even the material we have in our repositories, we are definitely the experts of how to care for collections and where we should go to ask questions when concerns for privacy are raised. I realize we are asking for our patrons and donors to trust our opinions and instincts, two very subjective qualities, but they should also be assured that they can trust our training in ethical responsibility.

References:

Esworthy, Cynthia. “A Guide to the Visual Artists Rights Act.” Harvard U, n.d. Web. Nov. 2013

Nordhaus, Jamie. “Celebrities’ Rights to Privacy: How Far Should the Paparazzi Be Allowed to Go?” The Review of Litigation 18.2 (1999): 286-315. Web. Nov. 2013.

Ritzenthaler, Vogt-O'Connor, Zinkham, Carnell, & Peterson. Photographs: Archival care and 

management. Chicago: Society of American Archivists, 2006. Print. 

“SAA Core Values Statement and Code of Ethics.” Society of American Archivists, May 2011. Web. Nov. 2013.