Who controls old photographs?

A Tourist Album and its Implications for the Intellectual Property Rights of Indigenous PeoplesThe Hopi Cultural Preservation Office has also issued a Protocol for Research, Publications and Recordings which further defines and elaborates the claims and intent of the tribe regarding intellectual property.

The Protocol includes sections on "Intent and Benefit to the Hopi Tribe," "Risks," "Tribal Consent," "Right to Privacy, "Confidentiality," "Use of Recording Devices," "Ownership," "Fair and Appropriate Return," "Indian Preference in Employment and Training," and "Review of Product or Research Results/Study."3 Both the Resolution and the Protocol mark new ground for the Tribe in making a legal claim for Tribal control of research and use of information and materials related to the Tribe, including historic photographic collections.The issues surrounding old photos:Use of existing photographic archives is less clear-cut because the photographs were taken in the past, with or without "informed consent" of the tribe at the time. Political and ethical issues were usually considerably different at that time (and we in the present should be careful not to impose our standards on the past, though we may consider ours superior). Most existing photographs of Native Americans were not made with the intention of financial gain, and even projects such as Curtis' monumental twenty volume publication bankrupted the photographer, rather than making him money. In most cases, any commercial gains made from the images, such as the Santa Fe railroad's advertising campaigns, are also buried in the past.

It is in retrospect, now that these images have acquired the extra lenses of age, nostalgia, and layers of symbolic meaning, that we value them. However, it would be naive to too quickly reject the idea that historic photographs are not used for commercial purposes.

For example, many historical societies and museums, not to mention "for-profit" organizations across the country sell postcards and calendars using historical photographs of Indians. Also, "researchers" in archives may include, as well as academics, individuals such as Ken Burns, whose vastly popular television series make almost exclusive use of historic photographs, including many of Indians. Small wonder that the tribes would want some part, finally, in control and gain from this historic exploitation.Why the cause is problematical:[P]hotographs as objects inhabit a gray area of existence. Unlike ceremonial objects, they were usually not made by tribal members, and were usually not possessed by them. Under copyright laws, rights to photographic images belong first to the maker of the photograph; copyright may also be held in some circumstances by the "owner" of the image. Laws protecting the privacy of individuals who are photographed have limitations; the privacy of cultural groups is not legally defined and in this context would probably be hard to apply unless the legal structures are changed to accommodate tribal claims.

Therefore, repatriation of photographic materials seems unlikely and tribes such as the Hopi have concentrated on building relationships and agreements with individual institutions which hold relevant material. Several institutions in Arizona, including the Heard Museum and the Cline Library at Northern Arizona University, have informal agreements with the Hopi Tribe which restrict access to and use of photographs of sacred and ceremonial material or events, and di- rect any request for publication of images to the Hopi Tribe.