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Millions Shall Sue Brother Joseph Again or, That Book Again!

By: Jared T - March 11, 2009

Last year, to much fanfare, Eborn Books released S. Michael Tracy’s Millions Shall Know Brother Joseph Again: The Joseph Smith Photograph which argues that a daguerreotype (known as the Scannel Daguerreotype) owned by the Community of Christ is an authentic daguerreotype of Joseph Smith.  Here is a gratuitous me reference that came out the day of the book’s release and here is a story from the Mormon Times the day after that better shows the image.

When I commented to that reporter I was smack dab in the middle of writing a lengthy, and at times, agonizing review of the book.  You can read that review in five parts here: 1, 2, 3, 4, and 5 (If you’re really bored enough to read all that, you have to also be sure to read the comments–there’s some fun stuff there).  I smoothed that out a bit and placed it here.  Some lively debate ensued here about whether or not there is evidence of Joseph Smith having had a daguerreotype taken of himself at all, specifically comment 54.  The conclusion at the time seems to have been that there is no evidence, documentary or otherwise, that a daguerreotype was ever taken, only insinuations.  I’m happy to report on this note, that our own Stan Thayne has brought a very intriguing reference to my attention, which I will leave to him to present in a future post.

When the book came out, though not reported in the “popular press”, some controversy had been brewing over Tracy’s use of the image. The JI posted a statement by the Community of Christ here that read:

The recently publicized image some people believe to be a picture of Joseph Smith is copyrighted intellectual property of the Community of Christ and is circulating without permission. All copies of the image were shared with researchers under strict conditions of confidentiality. E-mailing or displaying the image on the internet or any other media is a copyright infringement.

Community of Christ experts continue to study the image. If scholarly proof of identity satisfies rigorous internal guidelines, Community of Christ may make a statement concerning its authenticity.

Around the time I obtained the book and wrote the review, I understood that there was some talk about the possibility of a lawsuit over the use of the image.   After the statement was posted, some comments were made by “Nick”, the producer of Eborn’s documentary about the daguerreotype, in defense of Tracy’s rights to the image.

From multiple sources, I recently learned that a lawsuit was indeed filed and has been settled out of court.  The details are fuzzy for me as far as who exactly was named and what the exact issues were, but what was clear was that it was agreed that the book will not be recalled, but that once it is sold out, there will not be any more allowed to be printed.

So, though I cannot recommend the book as a good piece of research, I can recommend it to you as a quirky piece of Joseph Smith iconography.  And even though this looks like the end of the road for Tracy’s book, something tells me this isn’t the last we’ve seen of the Scannel Daguerreotype.

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12 Comments

  1. If Westerners could only see the vast quantities of daguerreotypes which exist here in the East – in repositories, in private collections, and at antique and book fairs, I think they would feel more hesitant to work so hard to make one stray image “fit” Joseph Smith. In my own casual collection, I probably have at least one early cased image which looks as much like Joseph as the Scannel dag does.
    I also continue to feel unsatisfied by the lean, youthful look of the Scannel image, and how close the hair is slicked or trimmed to the sides of the head. Also, I’m perplexed by the apparent unequal physiological development of the two halves of the man’s face – something I don’t recall reading anyone comment about in the nineteenth century, in relation to Joseph Smith.
    For many years, I had a death mask impression of Joseph framed on my wall (taken directly from the original, long before the multiple reproductions appeared on the market). I have read what people have written about distortion of the corpse before the mask impression was taken from Joseph’s body, but I still cannot “recognize” Joseph Smith in the Scannel image.
    - one man’s late-to-dinner comments!

    Comment by Rick Grunder — March 11, 2009 @ 11:34 pm

  2. Thanks for the news, Jared. Great post title.

    One more word: Provenance.

    Comment by Ardis Parshall — March 11, 2009 @ 11:53 pm

  3. One more word: Provenance.

    Ehh, overrated. ;)

    Comment by Ben — March 12, 2009 @ 12:02 am

  4. Yea, as are logic and reason. :)

    Comment by Jared T — March 12, 2009 @ 12:04 am

  5. And common sense?

    Comment by David G. — March 12, 2009 @ 1:55 am

  6. As long as there is still a possibility that this is the real JS daguerrotype, my testimony remains intact.

    Comment by Christopher — March 12, 2009 @ 9:08 am

  7. Here’s to looking forward to Curtis Weber’s MHA paper in Springfield (which should also be crowned with the “Best MHA Paper Title” award). Not to be missed.

    Comment by Alex — March 12, 2009 @ 2:29 pm

  8. Alex, I’ll be interested to see what he’s come up with. He’s mentioned to me that one of his points is that the theory Tracy puts forth of the misidentified skulls (which I understand he was led to by the work of Ron Romig) is in fact in error and the original identifications were correct.

    Comment by Jared T — March 12, 2009 @ 3:22 pm

  9. The copyright for any daguerrotype taken in Joseph Smith’s lifetime has long since passed into the public domain. Not only that, there was a relatively recent court case, Bridgeman Art Library v. Corel Corp, that indicates that exact photographic copies of public domain works do not qualify for copyright protection, because they lack sufficient originality.

    As a non-lawyer, it doesn’t appear to me that the Community of Christ has any copyright claim at all. The best they might do is sue someone for breach of contract. That won’t do any good now that the image is ‘out in the wild’ though.

    Comment by Mark D. — March 12, 2009 @ 3:25 pm

  10. Mark, I think the statement referenced above alludes to a contractual agreement, so that very well figure in prominently. I’m hoping to get more definite information soon.

    Comment by Jared T — March 12, 2009 @ 7:57 pm

  11. Jared T, I suspect that is the case. My complaint is the unsupportable claim of copyright infringement. The image is sufficiently old that now that is has been published, anyone (other than those bound by contract) can scan it in and post it on the Internet and (barring a legal miracle) there would be no legitimate copyright claim at all.

    That is what Bridgeman v. Corel was all about. The case could hardly be more applicable. Reproductions of paintings old enough to be in the public domain. No original copyright claim, no derivative copyright for straight reproductions.

    I am not a lawyer of course. But if I put it up, and they sent me a DMCA takedown notice, that is what I would tell them in my counter-notice, and I suspect I would never hear from them again.

    Comment by Mark D. — March 15, 2009 @ 7:38 pm

  12. Mark D.: My understanding from Community of Christ sources is that there was a contractual arrangement underwhich the original reproductions of the image were circulated. Like you, I’m not a lawyer, but the fact that the image is now broadly circulated seems to have resulted from the breech of that contract. Meanwhile, Jared is correct that there was a lawsuit and a settlement and the settlement means that the book won’t be reprinted. In any event, as Jared’s prior reviews indicated in detail, the book was problematic for a number of other reasons.

    Ultimately, Ardis is correct. Provenance is key. When this image was first discovered there was a chance that good provenance links might have been possible, but after a lot of research, they failed to pan out. Of course we’d all love to have a daguerreotype of brother Joseph. And if wishes were horses, all of us beggars would have one. Unfortunately, we don’t.

    Comment by John Hamer — March 20, 2009 @ 9:05 pm