Editorial: Maori have no right to Rua pictures

When we reported on Monday the discovery of an album of rare photographs of the trial of the Tuhoe religious figure Rua Kenana, and mentioned that they were being offered at auction, it must have crossed every reader's mind that his descendants would object. The prospect must have crossed the minds of the owner and the auctioneer, Dunbar Sloane, too, because when a granddaughter of Rua, Te Kura Walker, and Tuhoe artist Tame Iti duly objected the next day, the vendor was ready for them. The man, who would not be named, issued a statement warning that he would destroy the album if Tuhoe protested against its sale and did not bid to buy it.

Later that day he changed his mind and decided to remove the album from sale, purely, he said, in the interests of the auction. "It was the cheapest item in the whole auction and it had the potential to disrupt the rest of the auction process." He now hoped to sell the thing to a museum such as Te Papa. "I don't mind donating it," the man said, "but I do hope to recover my costs." Tame Iti, meanwhile, said he was willing to pay only what the man had paid for the album when he found it in an antique shop. "Why would he want photos of our ancestors?" Mr Iti asked. "He is only trying to make a buck and the images don't belong to him."

Oh yes they do. The photographs were taken in a a public place, outside the Supreme Court at Auckland where Rua's 47-day trial made news in 1916. And even if they had not been public images in that sense, they would have been the rightful property of the person who paid for the pictures. Newspapers have an obvious interest in squashing the notion that photographs are automatically the "intellectual property", as Mr Iti put it, of the person pictured or his descendants. The circumstances in which a picture is taken might sometimes lead a court to find it a breach of personal privacy but as a rule people do not have a proprietary claim on any photograph others might take of them. A moment's thought is enough to know how impractical any such principle would be.

People do, however, have some rights when they find their face being pictured for commercial purposes. The images of well-known people cannot be freely used to suggest an association with a product, for example. Anybody whose image is used in an advertisement, other than incidentally, would expect to own the rights to it. But to award the same rights to people whose exploits attract public interest would be to give those people control of the way in which their exploits are portrayed, and that would be contrary to the interests of free and independent public information. The same principle must apply when their exploits have passed into history and the photographs become collectors' items. History, too, is public property.

A collection such as that of Rua Kenana's trial has value both to the public record and to his descendants. Te Kura Walker said: "I just wonder why the man who bought these photos didn't consult us. He could easily have negotiated through the family first." When an item has both public and private value in this way an auction is probably the fairest way to resolve public and private claims on it. The auctioneer expected the album to fetch about $1200, not a bad profit on the $50 the vendor had paid the antique dealer, but not a price that would seem beyond the means of the tribe. Museums have limited funds for such acquisitions and quite possibly no institution would regard the historical value of this collection as highly as the vendor and his agent hope.

It would be a pity if the album is now given cheaply to a museum simply to save the auction from a protest. The lucky museum might value them so low that little effort would be made to display them well and the public would gain little. It may indeed be that the album has far more value to the tribe than any public institution but the best way to find out is to invite offers. Money, that much maligned measure of value, is usually the fairest test.