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June 12, 2012

The Mountaintop Mining “Kiddie Porn” Smear: The Photo Must Be Seen

Katie Falkenberg Mountaintop Mining bathtub Annenberg

If you’ve followed the story, mountaintop mining activist Maria Gunnoe was set to testify to Congress side-by-side with the photo of a naked girl in a bathtub filled with orange gunk. Then, the the GOP barred the use of the photo going so far as accusing Gunnoe after her testimony of being a child pornographer. That’s the political story (the matter pending now with the US Attorney).

Then we have the story of the photograph and the fact that this powerful image, which the family of the girl in the bath gave permission to accompany Ms. Gunnoe’s presentation in front of a Congressional committee (not to mention, a phalanx of DC photojournalists), is now next-to-nowhere to be seen.

Well, it wasn’t nowhere to be seen until the last few days.

After the story broke, a few websites posted the image out of concern (or outrage) that the thoughtful and coal-damning photo had been so horribly vilified. I was about to also, until I realized — after talking to the photographer Katie Falkenberg — that the photo had never been published in the media. That is the guideline I follow for reposting and analyzing a photo, this “fair use” criteria established for me in a finding created six years ago by a leading copyright and online media legal expert.

(By the way, because my conversation with Katie was off-the-record, I will refrain from giving details beyond what she has written or related to others for publication.)

Driven by a desire to protect the family and the young girl she photographed, Falkenberg contacted most of the sites over the past week that had published the photo and requested they take it down. All this was basically a formality and a non-issue, however, because the dozens and dozens of articles and blog posts out there that reported or weighed in on the photo in some way sidestepped use problems simply by linking to the large scale version of it on Katie’s site — that is, until sometime in the last day or so, when Katie took it down.

Here’s the vital link that allowed the world to see this overnight symbol of the poisoning of Appalachia and the GOP’s cynical attempt at pornification:

http://www.katiefalkenberg.com/#/the-human-toll–mountaintop-removal-mining/004

Now, all those links to the photo from all those who respectfully honored Katie’s copyright claim arrive at nothing but an empty frame and a statement in place of the fourth of twelve slides dedicated to the mountaintop mining issue that reads:

“The family declined media request to use this photo: it has therefore been removed from the photo essay to honor their wishes.”

It’s an odd statement since Falkenberg is not the media but the photographer who offered this image to all visitors as part of a serious and essential work of concerned photojournalism.

If you had been tracking Katie’s site, by the way, you would have noticed a previous amendment sometime in the last five or six days, the elimination of the photo’s caption — to me, a fair compromise, actually, which left the photo available to the world but removed any identifying information about the child or the family.

If the machinations had stopped here, we would still be left with the kind of concerns Joerg Colberg sketches out regarding the moral and social imperative to show the photo versus the privacy and copyright issues relative to the family and the photographer.

But here’s were it gets even stickier as a copyright vs. fair use issue. On June 5th, the Mother Jones Blue Marble enviro blog did a post on the story primarily about the photo. Blasting its headline in uncharacteristically bold type, accompanied by an even more uncharacteristic bold-type subhead, they ran the photo (admittedly, a half-column wide) with Falkenberg’s credit. (Here’s the web cached version of the page I had to really dig for on Google.)

Blue Marble MOJO Coal Porn after

And if that wasn’t enough, notice post author Tim McDonnell’s tweet (below) specifically trumpeting the photo and encouraging the masses to click through and see it.

McDonnell tweet Falkenberg coal photo

It’s inconceivable to me that MoJo, which has a tradition of running photo essays by top-class photojournalists, would publish this photo without Katie’s assent. More curious is how the post was reconfigured on June 6th (the next day after it was initially published), so that Katie’s photo was now disappeared and the headline converted and toned down, just like the photo never appeared there and thus never crossed the threshold of having been published in the media. (Current post version here.)

Blue Marble MOJO Coal Porn before

(According to typical practice, you would at least expect some kind of writer’s or editor’s note in the foot of the post noting the removal of the photo and headline and briefly why.)

Six years ago I started BagNews with the goal of speaking truth to visual power. My intent was to help foster a fairer visual media culture when it came to the daily flow of highly-spun and highly-mediated political and cultural images in the media sphere. In my mind, this photo is so important, I believe the need to see it — for its resonance before the GOP attack, but especially now — transcends Falkenberg’s concerns. I say this mostly mindful of the fact that this family gave permission for the photo to be shown to the Congress — at which point, the DC photo corps would have photographed it like mad and it would have been broadcast to the world making this whole discussion moot. (You could also bet, by the way, that the Michelle Malkins and the Free Republics out there would have made so much noise about the so-called porno angle that the reptilian move by the Committee on Natural Resources that ended up railroading the image would have paled in comparison.) Once we start censoring images with this kind of significance and visually infantilizing our citizenry, especially in this increasingly image-driven culture, I think we’re lost. Perceptually lost. And I don’t care if we’re talking about the left doing it, the right doing it, or the White House doing it (which they’ve done over and over).

But the situation, relative to fair use, is not the same as it was a week ago.  Whereas before, I was willing to sit on my hands and respect Falkenberg’s effort to restrict access, sans credit, on her own site (the photo leading this post from Katie’s public lecture at L.A.’s Annenberg Space for Photography lecture allowing the photo to be at least obliquely seen), the fact the photo ran in Mother Jones makes this a published news photograph now and, given those terms, the photo no longer belongs to Katie as much as it belongs to all of us now for the rightful purpose of public debate.

  • stevelaudig

    Change the subject when you cannot with an argument. The only obscene naked thing in D.C. is the Republicans nakedly prostituting themselves for corporation shareholders raping the planet.

  • Stella

    What kind of people defend the rape of our mother earth by accusing those who expose them of a sex crime?

  • black_dog_barking

    I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. [Emphasis added.]
    —Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964), regarding possible obscenity in The Lovers.

    Seeing what I see here I must wonder about those that claim to see porn. In the wailing about pornography I see naked self interest flailing about for survival, their cries diverting attention from the sick disgusting fact of orange sludge in water pipes. 

  • Gerry Desrosiers

    In terms of sexual content, this picture is not really any different from the famous picture of the Vietnamese girl whose clothing was burned off in a napalm strike –a photo recently re-visited in the national media. The pornography is in the context of the event and not the visual content of the photo. Still, I do agree with the decision to delete identifying information about the girl and her family.

    The members of the Republicenemy party should choke on their own fake outrage.

  • cf2k

    Given the Right Wing’s stock response when racism is pointed out–people who call attention to racism are the *real* racists!–I think an appropriate response here would be to say that people who have made accusations of child pornography here are the *real* pornographers. That is, are the real *exploiters.*

    • http://www.facebook.com/people/Alex-Blaze/1006100320 Alex Blaze

      Or that they’re the real pedophiles. Anyone who looks at the photo and says it’s sexual is saying more about themselves than they are about anyone else.

  • karen h

    You get the government you accept. Apparently, you get the art you accept as well. I just wonder how long it will take to recover from this mindset and how much damage will be done while we wait for it to be over.

  • bystander

    Once we start censoring images with this kind of significance and
    visually infantilizing our citizenry, especially in our increasingly
    imagistic culture, I think were lost. Perceptually lost. And I don’t
    care if we’re talking about the left doing it, the right doing it, or
    the White House doing it (which they’ve done over and over).

    Bravo, Michael.  Bravo.

  • Amir Goy

    ‘Murka is circling the drain….

  • http://reciprocity-failure.blogspot.com/ Stan B.

    That muck is the moral slime that the GOP bathes in daily- is it really any surprise that they would ignore a most obvious crime only to concentrate on an imaginary wrongdoing that they could pervert in their favor? And do so with a Taliban like intensity which anyone and everyone should have seen coming before the slideshow even began. Is it any surprise to see the ensuing censure that results? It’s happening right now with Ahn Sehong in Japan.

    And let’s not forget what happened to Subhankar Banerjee when Barbara Boxer mentioned his exhibit on the Senate floor- the GOP had it quickly removed form the Snithsonian’s rotunda main viewing hall to… the basement loading dock

  • Rob

    It’s interesting that you don’t consider yourself “media.” You have the same fair use rights mainstream media has to publish an image and discuss it. 

    • http://www.bagnewsnotes.com Michael Shaw

      I don’t usually think about it that way but I believe that’s true.  The sticking point here is that I won’t post an image if it hasn’t been published in the media already without the photographer’s permission.  Technically, I could have gone ahead after Newsweek/Daily Beast splashed the photo (full-size, by the way) on their Tumblr site on June 3rd or thereabouts. The problem there, however, is that I’m fairly certain they did so without permission. Once Mother Jones ran it, though, it was fair game given my understanding of fair use.  (… And I think our interpretation of fair use is pretty good given that we’ve had inquiries, sometimes complaints from media sites for years, but not one has pursued the issue after we explained our legal finding and our analytical mission.)

  • https://quaxquax.myopenid.com/ quaxquax

    If they would have known about this trick bag in the seventies, the most iconic photo of the Vietnam war would have never been published.

    http://www.cbc.ca/news/canada/toronto/story/2012/06/08/vietnam-war-photo-.html

  • George Mokray

    W Eugene Smith got beaten up badly for the work he did in Japan on Minamata disease.  One of his most famous images, Tomoko Uemura in Her Bath, reminds me of this child washing in coal contaminated water:  
    http://www.masters-of-photography.com/S/smith/smith_minamata.html

    The Repugs are the ones who are obscene and child pornographers.  They wish to silence any voice which opposes the interests of their masters and they’ve very nearly done it.

    • http://www.bagnewsnotes.com Michael Shaw

      That’s quite a visual comparison.

  • Glenn

    I know obscenity when I see it, and it’s obscene for an American family to have to bathe their child in polluted water.
     

  • http://twitter.com/ebishirl Shirley Gregory

    Michael, you hit the nail on the head with this phrase: “visually infantilizing our citizenry.”

    That’s part of what this is about, certainly, but it comes with far more venal undertones. The supposition that a photo is “pornographic” because some right-wingers don’t like the greater implications of the picture and have latched onto the “porno” complaint is more projecting and transference from those defending the status quo: ie, “You don’t like mountaintop coal removal because it poisons people and the environment” becomes “You’re a sick individual who takes pictures of naked children.”

    I don’t remember the right-wing tactics being THAT ugly even in the Vietnam days. No one (that I know of) ever accused the photographer of the iconographic picture of the girl fleeing the napalm raid of being a pornographer … not even the most die-hard supporters of the war. That this tactic is being used today is a sign of dark political times indeed.

    • http://www.bagnewsnotes.com Michael Shaw

      Shirley: The role and prominence of images in our culture is so different today. It makes me wonder what actually would have happened with the Napalm Girl in the social media space. (Hopefully not it’s effective erasure.)

  • Sacha

    About the comment ”the fact the photo ran in Mother Jones makes this a published news photograph now and… no longer belongs to Katie as much as it belongs to all of us now for the rightful purpose of public debate.” …on that I do not agree, get Katie’s permission or don’t run it. Your use of the lecture image is a good work around.

    That being said I hate how this change of child pornography has shifted the discussion
    away from the real issue of the process of mountiantop removal and the
    environmental crisis, as depicted in Katie’s photo.

  • http://pulse.yahoo.com/_K7DJRZBQDA7ATS25BXARHQPIH4 vaxo

    Republicans are simply evil motherfuckers

  • ihatetreehuggers

    come  on people im from harts creek west virginia i wish they would take them trees and plant them some wheres else when the mines leave the people leave save mines save JOBS NOT THE FU!@#@ING TREES  THANK OBAMA WE HAVE NO RESOURSES IN  WEST BY GOD VIRGINIA EXCEPT FOR SELLING OXYS NOW AND WAT A WAY TO LIVE

  • Pingback: The Digest – June 17th, 2012 | LPV Magazine

  • George Mokray

    The resonance is obvious.  Too bad people don’t know history any more.  

    Perhaps people should send copies of Smith’s photo of Tomoko Uemura to the Repugs on the committee and ask them if that is obscene and more obscene than the chemical dumping that resulted in Uemura’s debilitation and disease.

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