Santa Fe art dealer, Harvard reach deal over book’s photos

Steve Elmore, an Indian art dealer in Santa Fe, and Harvard University have reached a settlement over the publication of photos in a book on Hopi potter Nampeyo. Luke E. Montavon/For The New Mexican file photo

Steve Elmore, owner of a Native American art gallery in Santa Fe, will be able to resume selling his self-published book on the renowned Hopi potter Nampeyo under a settlement he recently reached with Harvard University.

Last month’s settlement is a “significant victory for Nampeyo,” Elmore said, because “we will be able to continue telling her story.”

Harvard sued Elmore in federal court last year, alleging copyright infringement and breach of contract over photos he had used in the book, In Search of Nampeyo: The Early Years 1875-1892. The work, he said, was the culmination of two decades of research on an artist he called “as great as [Georgia] O’Keeffe on any level.”

U.S. District Court Judge Robert C. Brack ruled against Elmore in late August on the main issue of the case, centering on a photo agreement he had signed with Harvard’s Peabody Museum of Archaeology and Ethnology, where he had conducted some of his research. The museum’s contract allowed him to photograph Nampeyo pots in its Keam Collection for his own personal research but prohibited him from displaying or publishing the images. The judge ordered Elmore to pay $10,000 for breaking that contract.

But under a settlement reached the following day, Harvard forgave the $10,000 and, according to Harvard’s lawyer in the case, Ben Allison of Santa Fe, “agreed to let him sell limited copies of his book with a statement correcting the misattributions and other problems with the photographs.”

Elmore considers the settlement a victory. “They wanted my book to be dumped into the landfill, and they lost that,” he said.

All copies of Elmore’s book must include a statement from Harvard saying that the Peabody Museum Press did not approve the photos and that they did not meet the museum’s standards. Elmore can print 1,500 more copies of the book, but he can never use the photographs in other projects without Harvard’s approval, the settlement says.

The statement by Harvard that will be bound into the book says, in part, “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.”

Earlier this year, Brack ruled in Elmore’s favor on Harvard’s claim of copyright infringement for his use of 50 photographs from a book published by the Peabody Museum Press, Historic Hopi Ceramics. Brack said that because Elmore had changed the photos — making them into illustrations — there was no copyright infringement.

But in the more recent ruling, the court said Elmore’s various counterclaims in the case, including allegations that his research was misappropriated, were untrue and that there was no basis for his claim for millions of dollars in punitive damages against Harvard. All of his allegations against the university were dismissed except a claim for $257 in travel costs.

Harvard brought the case, Allison said, because, “The museum’s contract with researchers is the basis for relationships with thousands of researchers around the world. The museum felt it needed to defend its contract so that research can continue. The court rulings and the statement bound into the book do that.

“The museum is committed to open access for research and this contract facilitates that — and that’s why it’s so important,” he added.

According to Allison, Elmore’s monetary demands were what held up the settlement.

Elmore said that in 2009, the Peabody Museum Press invited him to submit a book proposal about Nampeyo’s ceramics in the museum’s Keam Collection. The press rejected his manuscript for the project, though Harvard did offer Elmore up to 15 high-quality photographs from the museum if he wanted to have the book published elsewhere.

Elmore has maintained throughout the case that a 2014 letter from the Peabody Museum Press, notifying him that it wouldn’t publish the book, returned all rights to him, including the rights to the photos he took at the museum. Harvard disagreed.

Elmore, at one time a professional photographer, spent $36,000 of his own money to publish the book after it was rejected. He says he sold hundreds of copies before he was stopped by an injunction and still has more than 1,700 left. The book was offered for $100 in hardback and $50 in soft cover.

Contact Anne Constable at 505-986-3022 or aconstable@sfnewmexican.com.