Representation and ownership; the delicate case of W. Eugene Smith’s Tomoko image

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“Even the most compassionate photojournalism is under pressure to satisfy simultaneously two sorts of experiences: those arising from our largely surrealist way of looking at all photographs, and those created by our belief that some photographs give real and important information about the world. The photographs that W. Eugene Smith took in the late 1960s in Minamata … move us because they document a suffering which arouses our indignation—and distance us because they are superb photographs of Agony, conforming to surrealist standards of beauty.”

                                                                                    * Susan Sontag

You will be told we must continuously show these images as a reminder of what must never happen again! These arguments, I believe, are specious when looked at without the filter of the mass media. The classic Aristotelian notion of tragedy, which calls for the dramatic presentation of  “ … incidents arousing pity and fear, wherewith to accomplish its catharsis of such emotions,” seemed prescient in the age of photographic representation. Yet while such photographs may arouse pity, fear or anger, it is hard to imagine what cathartic value the perpetual viewing of, to put things crudely, a dead or dying body might have, regardless of it’s historical or political significance. 

To this end, Sontag has also written:

“To suffer is one thing; another thing is living with the photographed images of suffering, which does not necessarily strengthen conscience and the ability to be compassionate. It can also corrupt them … after repeated exposure to images it also becomes less real … The sense of taboo which makes us indignant and sorrowful is not much sturdier than the sense of taboo that regulates the definition of what is obscene. The vast photographic catalogue of misery and injustice throughout the world has given everyone a certain familiarity with atrocity, making the horrible seem ordinary …” 

Outside the realm of censorship, however exercised, photojournalists, documentarians and defenders of the genre have historically shown little restraint or reflection in the use of more “important” images. Actions against this deeply ingrained sense of representational duty are rare, if not blasphemous.

In 1998, pundits were aghast when Aileen Mioko Smith, the widow of master photo-essayist W. Eugene Smith, heeded the pleas of the Uemura family to bar all future use of one of Smith’s most enduring images, “Tomoko is Bathed by Her Mother.”  The photograph, a classic example of Smith’s unabashedly Romantic sensibility, with trademark high-contrast printing to further enhance the chiaroscuro lighting, had been taken in 1971 as part of an essay on the effects of mercury poisoning in the Japanese fishing industry. The photographs published in Life magazine, and in the book entitled “Minamata,” came to symbolize the plight of the families afflicted with birth defects and other illnesses. Notwithstanding concerns expressed by purists that Smith had engaged in some decidedly questionable journalistic ethics by staging the image in the most dramatic light that could be found, the photograph is held up as a shining example of humanitarian documentary work, nearly as impressive symbolically as it is narratively.

The Uemura family eventually prevailed in the first Minamata Disease trial against the Chisso Corporation, but a few years later Tomoko, only twenty-one years old, passed away. In an emotional letter written in 1998, Tomoko’s father outlines how the famous photograph has, over the years since their daughter’s death, become a crucible, outliving it’s original usefulness:

“ … we were faced with an increasing number of demands for interviews. Believing that it would aid the struggle for the eradication of pollution, we agreed … as a result rumors began to circulate … `They must be making a huge amount of money from all the publicity’ … I do not think that anybody outside our family can begin to imagine how unbearable these persistent rumors made our daily lives … in 1977 we were contacted by a French television company who were planning to produce a program entitled `One Hundred Photographs of the Twentieth Century,’ and they said it was vital for them to use … Eugene Smith’s `Tomoko.’” I did not want to take part in this program so I turned them down … I wanted Tomoko to rest in peace and this feeling welled up in me steadily.”4

In response, Smith, who had worked with her husband on the Minamata project, and had been intimate with the Uemura family, agreed. In a letter to the media, she wrote:

“Generally, the copyright of a photograph belongs to the person who took it, but I think that it is important to respect the subject’s rights and feelings. Therefore, I … promised that I would not newly exhibit or publish the photo in question. In addition I will be grateful if any museums who already own or are displaying the work would take the above into consideration …”5

Aperture magazine, widely respected as among the most excellent arbiters of important photography, dutifully published a response that brushed aside copyright concerns. Instead,  it served to chastise Aileen Mioko Smith for giving away what was not hers, violating a trust rendered sacred forged by an unconditional, long-held sense of protective ownership.  Never! Imagine the precedent! Aristotle himself might’ve appreciate the manner in which the removal of the photographs from public view would provide those most personally affected with the catharsis necessary to complete the dramatization of the tragedy, but it was not to be…

Eugene and Aileen Smith’s Photograph of Tomoko and My Family

by Yoshio Uemura

Tomoko was born on June 13, 1956. A few days after her birth, Tomoko began to exhibit trembling fits. She cried every day and we were unable to leave her side. We thought this strange and took her to various hospitals in Minamata City, but none of them were able to say what was wrong with her. She was later suspected to be suffering from cerebral palsy. However there was really no treatment for her but to give injections to her tiny, thin body.

It was not until November of 1962 that Tomoko was recognized as suffering from congenital Minamata Disease. At this time she already had three younger sisters. On December 26th of that year another sister was born and by 1969 she had a total of six siblings. Despite having so many children, looking after Tomoko took a lot of our time. A single meal would take about two hours for her to eat and so just feeding her would occupy more than five or six hours every day.

The first Minamata Disease lawsuit began in June 1969 and went through forty-nine hearings before the proceedings were concluded with the final judgment being handed down on March 20, 1973. During this period, people from all over the country offered their support and among them were Eugene and Aileen Smith, who had rented a house near ours in Detsuki from Tadaaki Mizoguchi and were photographing the families of the victims of the disease.

Among the many photographs they took, there was one of my wife Yoshiko holding Tomoko in the bath. Yoshiko told me that Tomoko had let her body lie straight without trying to curl up. To be honest, we had thought that the photograph would only take a brief moment so we had agreed to the shoot without giving the matter a second thought. I was told that Tomoko seemed exhausted when she got out of the bath.

The photograph went on to become world-famous and as a result we were faced with an increasing number of demands for interviews. Believing that it would aid the struggle for the eradication of pollution, we agreed to the interviews and photographs and the organizations that were working on our behalf used the photograph of Tomoko frequently in their activities. However, as a result, rumors began to circulate in the neighborhood and among other people around us. “They must be making a huge amount of money from all that publicity.” This was untrue. It had never entered our minds to profit from the photograph of Tomoko. We never dreamt that a photograph like that could be commercial.

The truth is that we did not benefit financially at all from the photograph. I do not think that anybody outside our family can begin to imagine how unbearable these persistent rumors made our daily lives. Sometimes we had to face the flashes and hot lights of television interviews, and although she could not speak herself, I am sure that in her heart Tomoko felt that because of her, we –her father, mother, sisters, and brother– were having to go through such pain. As her father, I found the thought that this concern existed in the corner of her mind extremely unpleasant. Several years before she died, she began going to the hospital many times and each time she came home she was smaller than when she went in. She never smiled any more and seemed to become progressively weaker.

Despite this, Tomoko still had a strong will to live and she was treasured by everybody in the family. I regret so much that I could do nothing to soften her pain…the fevers from colds, the suffering, the only slight relief she could get from the injections and medication. The treatments probably provided but slight relief for her. I have now come to believe that the sole thing that sustained Tomoko was her parents and siblings, her family’s love gave her reason for living, and perhaps enabled her to survive as long as she did.

I am sure that it must have pained Tomoko not to be able to express her gratitude to those who helped her come as far as she did, but I think it was the absolute love and affection my wife offered her that made her life worth living. The industry as well as the national and regional government sent us and untold others to the bottom of hell. And the whole lot of them neglected to save lives but instead bailed out the company. And the company that caused thousands to fall victim now survives as though it has never committed any sin.

The court case was concluded, but victory has no value to the deceased and the seriously ill. And even if the government were to apologize officially, this would do nothing in the slightest to relieve the symptoms of the victims. Tomoko died on December 5, 1977. She was 21 years old. All we could do was to hold vigil before Tomoko who had departed us in silence. I could not hear the words of those that paid homage to her in the funeral procession. Their words could not enter my ears. In blank stupor, Tomoko departed to heaven ahead of her parents, leaving behind her sisters and brother…

In 1997 we were contacted by a French television company named CAPA who were planning to produce a program entitled, “One Hundred Photographs of the Twentieth Century” and they said that it was vital for them to use “the picture that captured the environmental problems of Minamata, Eugene Smith’s ‘Tomoko’.”

I did not want to take part in the program so I turned them down. I know what television interviews involve and also, many of the organizations that are working on our behalf are using the photograph in various media, many of them in places we do not know about. I realize that this is necessary for numerous reasons, but I wanted Tomoko to rest in peace and this feeling welled up in me steadily.

Hearing the way I felt, Aileen came all the way from Kyoto to visit me on June 7th last year and she promised to revert all rights of decision to the picture of Tomoko to my wife and I. We later received this promise in writing and a copy of it appears on the following page [below]. I and my family are filled with gratitude from the bottom of our hearts toward Aileen. I thank her deeply for this wonderful gift to Tomoko. I feel that Tomoko is now finally resting in eternal peace. I ask all of you for your support and understanding.

His letter ended:

1. I,  Aileen Smith, return the photograph entitled “Tomoko is Bathed by her Mother” to Mr. and Mrs. Uemura.

2. This means that the right of decision concerning the use of this photograph reverts to Mr. and Mrs. Uemura.

3. In the future, when any requests are made to me concerning this photograph, I will explain the following (see separate sheet) and refuse use of this photograph.

October 30, 1998

Aileen Mioko Smith

Regarding the Photograph, “Tomoko is Bathed by her Mother”

by Aileen Mioko Smith

The photograph entitled “Tomoko is bathed by her Mother” was taken in December 1971 by Eugene and Aileen Smith. At the time, Tomoko was a plaintiff in the first Minamata Disease trial and was suing the Chisso Corporation for damages. Her parents wanted society to know about their daughter and therefore agreed to the taking and publishing of the photograph.

Since 1972, this photograph has been published in Life magazine, a book of photographs entitled “Minamata” (1975 in English, 1980 in Japanese) etc., causing a huge response, and became a symbol of Minamata Disease.

The plaintiffs won their case in March of 1973 but sadly, Tomoko died in December 1977 at the tender age of twenty-one. Despite this, however, the photograph continued to be used as a symbol of Minamata Disease in books and exhibitions, leaving a strong impression on a large number of people. I later heard that this resulted in a certain amount of conflict within the minds of her family, who wanted to see the end of the kind of pollution that caused the problems, while at the same time wished to let Tomoko rest in peace.

Generally, the copyright of a photograph belongs to the person who took it, but the subject also has rights and I think that it is important to respect the subject’s rights and feelings. Therefore, I went to see the Uemura family on June 7, 1998 and promised that I would not newly exhibit or publish the photograph in question.

For the above reasons, the photograph entitled “Tomoko is bathed by her Mother” will not be used for any new publications. In addition I will be grateful if any museums etc. who already own or are displaying the work would take the above into consideration when exhibiting etc. the photograph in the future.

October 30, 1998

Aileen Mioko Smith (Copyright Holder)