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Pickpocketed by the Smithsonian Institution

The Smithsonian Institution, a wonderful taxpayer-supported educational establishment, has a bad record when it comes to treating scientific Darwin-doubters with due respect for academic freedom and free speech. Now to this list of indictments add respect for intellectual property.

Readers will recall the Richard Sternberg affair, in which supervisors at the National Museum of Natural History (NMNH) persecuted an evolutionary biologist on staff just for editing a peer-reviewed research paper supportive of intelligent design. More recently, senior figures at the Smithsonian may have pressured the affiliated California Science Center to cancel a contract to show a Darwin-critical documentary, in what seems to be an instance of a public facility illegally regulating speech.

In both of those cases, the indications suggest it was the intention to squash a controversial viewpoint that motivated Smithsonian personnel. In the case of renowned lepidopterist Bernard d'Abrera, there's no reason to believe that it was his Darwin-doubting itself that led to an act of startling brazenness.

Brazen...what? "Theft," as d'Abrera calls it in his account published in a recent book in his series Butterflies of the World. He actually puts the word in quote marks since, he observes wryly, his attorney advised him that while it looks to the untrained eye exactly like theft, it wasn't a criminal case, ending up instead in the Court of Federal Claims.

D'Abrera tells the whole story in his new book, Butterflies of the Afrotropical Region, Part III: Lycaenidae, Riodinidae, which I've written about in previous posts. A Smithsonian publication on the butterflies of Myanmar (a/k/a Burma) pirated -- or "pirated" -- a huge batch of his famous, gorgeous, and unique butterfly photos for use without permission, notification, or compensation of any kind. When caught, no one with the Smithsonian tried to deny it. D'Abrera received no apology. The Smithsonian strenuously resisted attempts to claim compensation but, after wearing d'Abrera down, finally agreed to settle the case with a payment of $120,000.

When I contacted several Smithsonian spokesmen, I was referred to the institution's Associate General Counsel, Lauryn Guttenplan, who emailed me that the Smithsonian confirms the settlement was reached but has "no comment on Mr. d'Abrera's version of the dispute as set forth in his new book."

Isn't it strange for a government entity to be so unforthcoming with an account of its actions? It gets stranger. D'Abrera records that in email correspondence with Stephen Kinyon, compiler of the book in question, An Illustrated Checklist for the Butterflies of Myanmar, Kinyon was open about having appropriated the lepidopterist's images. He wrote that he "did scan a number of butterfly pictures from your Butterflies of the Oriental Region Parts 1, 2 and 3." What number, exactly? D'Abrera counts 1,352 butterfly pictures, or 62 percent of the images "compiled" by Kinyon. That's a lot of butterflies.

Kinyon went on to say that the project was funded by the Smithsonian's Conservation and Research Center (CRC) to help train Burmese forest rangers. The book also got money from the Walt Disney Company Foundation.

Kinyon explained that when "putting the checklist together, we realized that the specimens I collected...would not come near to covering all Burmese species. We filled in the gaps with images copied from several published works. I discussed this with my friends at the CRC, and decided eventually that this should not be a deterrent, given the charitable purpose and distribution limited to NWCD [Myanmar's Nature and Wildlife Conservation Division] and the University of Yangon in Burma."

Since when did seeking to educate students of forestry or any other field exempt you from paying someone for his work? On contacting the Entomology Department at the Smithsonian's National Museum of Natural History for a reaction, d'Abrera received from spokesman Gary Hevel the astonishing consolation that curator of lepidoptera Bob Robbins "comments that Kinyon's use of some of your images is a true testament to your photographic skills."

This is like someone surreptitiously lifting the wallet out of your pocket, extracting the cash inside and making off with it -- and then, when confronted, explaining that he talked it over with friends beforehand and decided that since the money in his own wallet "would not come near to" covering an expenditure on behalf of a deserving Burmese acquaintance, therefore the fact that it's your money "should not be a deterrent" to pickpocketing you. On the contrary, you should feel flattered since the choice of you above other possible victims is "a true testament" to your "skills" in earning the money in the first place.

The only problem with this analogy is that there were no other possible victims with an adequate holding of butterfly photos to swipe. In the world of lepidoptera, d'Abrera is without a competitor. "He is a controversial biologist," comments Dr. Thomas Emmel, director of the Florida Museum of Natural History's McGuire Center for Lepidoptera and Biodiversity, "but one whose remarkable lifetime accomplishments publishing an illustrated catalogue of butterflies of the world must be admired for a unique contribution that will likely never be duplicated."

D'Abrera claimed he was owed $1 million in statutory damages, both for the swiped photos and the accompanying systematics with all the original research that the latter represent. It's not hard to make the case for this figure. D'Abrera was allowed to photograph the enormous and unequaled collections of the British Museum (Natural History), a privilege he paid for, with the whole project consuming six years of his professional life and, he says, an investment of his money equal to a seven-figure sum.

As d'Abrera informs me, the Department of Justice sought to defend the Smithsonian based on a claim that d'Abrera did not deserve such damages because his works, published in Australia where he lives, were not properly registered for copyright in the U.S. However, while I'm not a lawyer, it would seem that d'Abrera should have been protected anyway under the Berne and Universal Copyright Conventions of which the United States is a signatory.

What does it all mean? This is not another Sternberg case. And NMNH spokesman Randall Kremer denies that the Entomology Department at Sternberg's former institutional home had anything to do with the publication of Kinyon's entomological catalogue. Copyright cases are handled for the most under civil law, and they are, of course, common.

But there is something really unseemly and, as I said, brazen about the Smithsonian's treatment of this distinguished 70-year-old biologist. Unlike a lepidopterist at, say, the Smithsonian Institution, d'Abrera is freelance, meaning that either he earns his keep or he starves.

While the d'Abrera affair doesn't tell us anything about the intellectual freedoms denied to Darwin doubters, it does suggest a possible reason why, in those cases, the name of the Smithsonian Institution keeps coming up. On one hand, the SI is a public endowment, answerable to taxpayers and the U.S. Constitution. That demands a degree of transparency and fair play that would not be legally required of private organizations, which are entitled to exclude viewpoints that owners or administrators dislike.

In the d'Abrera story, the SI took full advantage of its protections and resources as a government entity. Yet when it suits them, staff at the Smithsonian (and the California Science Center) behave as if they were not employees of a public trust at all but rather of a private agency and, in suppressing dissenters from institutional orthodoxy, a rather opaque and unprincipled one at that.