Emotional Copyright: The Case of Eugene Smith‘s Tomoko and Mother in the Bath

November 9, 2023

By Barbie Kim

This article investigates copyright’s role in the afterlife of the photograph Tomoko and Mother in the Bath by American photojournalist W. Eugene Smith. Copyright plays a critical role in the pragmatic distribution of the photograph and in developing the conceptual interpretation of the work.

Background

In October of 1970, American photojournalist W. Eugene Smith gained awareness about the ongoing public health crisis in Minamata, a fishing city located on the coast of the Shiranui Sea, from Japanese photographer Motomura Kazuhiko.^[1] From 1971 to 1974, Smith made Minamata his home with his then-wife and collaborator, Aileen M. Smith. Together, the Smiths documented the detrimental impact of mercury poisoning on the local community caused by the Chisso chemical company’s chemical dump.

The Chisso chemical company had released toxic waste containing methylmercury since the beginning of the twentieth century, poisoning the food chain and affecting the local residents. Their actions were finally officially recognized in 1956.^[2] By then, the aftermath of mercury poisoning was already engraved in the village of Minamata. For decades, Chisso hid the mercury leak and the company has been silencing the event since 1925. In 1969, their action resulted in a head-turning lawsuit.^[3] On March 20, 1973, the court reached the verdict, which had set damages for the injuries caused by Chisso’s mercury. ^[4] The Chisso-Minamata disease, however, still looms over Japan as a public health concern.^[5]

The Smiths published some of their work in the photo essay format in Life magazine on June 2, 1972. The photo essay created a world sensation and drew global attention to the environmental crime of the Chisso company. The Smiths extended their stay and later published a more elaborate and personal version of their investigation Minamata: The Story of the Poisoning of a City, and of the People Who Chose to Carry the Burden of Courage (1975).

The Smiths’ Minamata series was intended to be a showcase of suffering and to raise public awareness. The photo series Minamata by the Smiths is now described as “a master of twentieth-century photojournalism.”^[6] Amongst the works published, one photograph, titled Tomoko and Mother in the Bath (1971), particularly left a mark in the history of photography and photojournalism.^[7] The photograph portrays Tomoko, who was affected by the mercury poisoning leaking from the Chisso factory since birth, being bathed by her mother Ryoko.^[8] The Smiths positioned Tomoko and Mother in the Bath on the last page of the photo essay. The Smiths conclude the photo essay by introducing Tomoko with a block of white text floating on the lower left corner of the page, contrasting the black background and describing her condition. They wrote, “This is Tomoko Uemura. Mercury poisoning maimed her while she was still in her mother’s womb. Blind, speechless, crippled, and deformed since birth, she must be bathed, fed, and cared for like an infant. She is now 17.”^[9]

The emotional weight of copyright

Since its first publication, the photograph of Tomoko has transformed from photojournalistic material to aesthetical artwork. The changing function of the picture led to a weighted emotional afterlife. The moral consequences demonstrated by Tomoko’s family presented a dilemma in exhibiting the picture. Making the media representation of Minamata publicly available invoked urgency to hold the Chisso company accountable on a global scale. Chisso-Minamata mercury is accounted as one of the most significant public health crises in the nation by state officials.^[10] Perhaps many Minamata citizens could not find statutory damage recovery otherwise. Through media circulation, “Minamata” is established as a monumental event in environmental history and a cultural phenomenon expanding beyond a local level.^[11]

Regardless of justification, Media exposure grants different forms of moral violation. Representations of Minamata faced criticism for stigmatizing the citizens and creating negative associations with Minamata. Smith’s representation of Tomoko especially becomes haunting images preconditioned to skewing narratives.

By picturing the subjects through a frame that inflicts suffering, the photograph exploits the trauma of the subject’s experiences.^[12] Smith deliberately captured and posed Tomoko naked, bathing her mother. The details of Tomoko’s body paint a visual— the little girl is suffering the symptoms of mercury poisoning, “crippled and deformed since birth.”^[13] This portrayal of Tomoko reduces her to a “deformed” victim, stigmatizing her impairment. Then, every photograph reproduction enforces this exploitation and reinforces the stigma.

Tomoko’s family lost their daughter twice, first to chemical poisoning and then to the copyright structure where they no longer held the agency to their memory of her. Tomoko died at the age of 21 in 1977. Since then, Tomoko and Mother in the Bath have taken on many forms of afterlives as visual evidence, photojournalism material, and artworks. The photograph generates different narratives and messages in each of these contexts. Particularly, the photograph has taken a different life where it became a known artwork exhibited or resting in collections of art museums without giving any additional context.^[14] From photojournalist publications to museum collections, Tomoko and Mother in the Bath has been broadly circulated within institutional environments. These circulations are bound to be governed by copyright.

Copyright then takes on a critical role in connecting between the pragmatic distribution of the photograph and in developing the conceptual interpretation of the image. Originally, Tomoko’s family agreed to publish the photograph, wanting society to know their daughter’s fate.^[15] The circulation of the images had resulted in unauthorized uses, causing emotional distress for Tomoko’s family after her death. To Tomoko’s family, displaying photographs without permission immortalizes Tomoko’s suffering. Tomoko’s father, Yoshio, states,

“many of the organizations working on our behalf are still using the photograph in various media, many of them without our consent…I realize this is necessary for numerous reasons, but I wanted Tomoko to be laid to rest…”^[16]

The family’s request to limit reproduction is an ethical expectation of the institutions and is not legally binding. Tomoko’s family is left with no agency in managing their daughter’s afterlife in the form of photography.

Copyright and the Author

At the core of copyright’s functionality are concepts of private rights, ownership, exclusion, and individualism.^[17] Unless an exception applies, this image’s copyright holder is assumed to be the photographer. Legal scholar Sheldon Halpern’s book chapter Copyright Law and the Challenge of Digital Technology criticizes the absence of context in intellectual property law, especially for copyright law. Halpern argues that determinations of moral and ethical conduct are challenging because copyright law lacks a clear underlying moral and ethical context.^[18] He concludes that “the nature of American copyright law makes it difficult, if not impossible, for individuals to find or to construct an unambiguous moral compass.”^[19]

The underlying purpose of U.S copyright law is to encourage progress and development of knowledge.^[20] Copyright enables the creation and distribution of new creative works and grants creators a set of exclusive rights for a limited period, after which the work becomes free for everyone to use when it enters the “public domain.”^[21] In the context of photography, copyright prioritizes and reinforces the authorship of the photographer. Moreover, copyright identifies the author within the institutional structure, including museums, markets, and publications.

Dr. Carys Craig’s legal review “Reconstructing the Author-Self: Some Feminist Lessons for Copyright Law” interrogates the weaknesses of the “genius authorship” model in copyright. Craig breaks down the romantic author in the copyright realm, focusing on its tendency to support broad protection for “original-genius” authors. Copyright then prioritizes the author’s position in the creative hierarchy and grants a linear image interpretation.

Craig’s theory reimagines a copyright system that emphasizes contextualizing collaborative labor in the creative process. Through Craig’s theory, photo-reproduction processes will then require the partitioners– photographer, institutional policymakers, and viewers– to consider the photograph beyond a snapshot of reality but a latent trace of subjective memory.

Where’s Aileen?

Paradoxically, other than Eugene Smith’s testimony, copyright is one of the only ways to retrace Aileen Smith’s contribution to the Minamata project. The Minamata project left a historical significance in the legacy of photojournalism. Aileen Smith was credited for almost half of the photographs in the Minamata project (1971-1975). However, the project has primarily been associated with Eugene Smith’s photojournalist career and reduced Aileen Smith solely as Smith’s spouse accompanying the photographer but not as a collaborator in the project.^[22] Social Critic Susan Sontag included the story of Minamata in her book Regarding the Pain of Others, where her narrative of the history omits the authorship (and existence) of Aileen Smith in the Minamata project altogether.^[23]

W. Eugene Smith is the credited author and was granted the copyright to Tomoko and Mother in Bath because he had photographed the image and developed negatives from the darkroom, showing evident creative originality and expression. Although credited to W. Eugene Smith, he would not have realized the photograph without the collaboration of Aileen Smith and Tomoko’s family. The collaborative contribution of Aileen Smith and Tomoko’s family is only somewhat documented. E. Smith underlines the non-creative labor Aileen Smith took on to make Minamata happen. E. Smith claimed himself a “blockhead” in learning a new language and recalled how Aileen dedicated herself to understanding the local dialect, which allowed the couple to conduct necessary research.^[24]

Eugene Smith died in October 1978 from a stroke. The Center for Creative Photography at the University of Arizona in Tucson housed the W. Eugene Smith archive, including his prints and negatives, but the copyright is still owned and managed for the heirs by Smith’s son Kevin Smith.^[25] The one exception is the Minamata series, in which Alieen Smith manages copyrights to 72 published photographs and a portion of the estate as she is still involved in environmental activism continuing from Minamata.^[26]

Aileen Smith established Aileen Archive (Ltd.) in 1994 to manage the copyright of the Minamata photographic work by W. Eugene Smith.^[27] A. Smith attempted to approach the copyright issue of the photograph with an emphasis on the emotional weight behind the photograph. In 1998, Aileen Smith decided not to release the photograph anymore in honor of Tomoko’s family, stating the following: “generally, the copyright of a photograph belongs to who took it, but the model also has rights, and I feel that it is important to respect other people’s rights and feelings.”^[28] A. Smith made another statement in 2001 explaining her decision. Aileen Smith stated, “over the years, though she felt the duty to release the photograph, the act gradually turned into something ugly.”^[29] The statement by Smith showed her acknowledgment of the ethical power generated simply by holding the photograph’s copyright, as she stated:

“As [the] copyright holder, I must also meet my responsibility to the viewer; I must not lie to her or him. How could I publish this photograph, knowing but concealing the fact that this photograph should not be released? […] This particular decision made on the Tomoko photograph was an act of exercising copyright, not relinquishing it. I believe the decision contributes to the empowerment of photography, photography as art, and journalism.”^[30]

Copyright allows information to be privately owned and selectively distributed while claiming ownership over the subject’s images. Aileen Smith’s statement demonstrates her understanding of the copyright owner’s power in the discourse of the emotional afterlife of the image. A. Smith conveys the moral responsibility she felt as a copyright holder and addresses sentimental value and social responsibility to Tomoko’s family. A. Smith is also set to honor the power she held as the current copyright holder of the photograph.

Despite the gesture, the moral sufficiency of A. Smith’s decision remains in question. As the copyright holder, A. Smith possesses the right to initiate a legally binding copyright transfer.^[31] Instead, she simply decided to terminate the release access to only one photograph from the entire Minamata series.^[32] Tomoko and Mother in the Bath is not the only representation of Tomoko photographed by the Smith couple. Both took multiple other photographs of Tomoko and her mother throughout their time at Minamata. These photographs are still widely circulated online and in print. Tomoko and Mother in the Bath can be argued as a specific cause because of the extent of photo manipulation and nudity that especially portrayed Tomoko in a state of heightened trauma and suffering. The photograph thus subjects Tomoko’s family to the trauma of witnessing and memorizing their daughter as the embodiment of suffering.

To complicate the matter, Tomoko and Mother in the Bath take on afterlives in the form of reprints, digital reproduction, and scanned copies from other publications. The reprints of the photograph are also readily available in the art market as art objects rather than photojournalistic evidence. Both Sotheby’s and Christie’s had records of realizing transactions of various reprints of Tomoko and Mother in the Bath at above 10,000 USD. The most recent sale of the photograph was auctioned at Sotheby’s with a record of 52,920 USD. While poetry ownership does not grant copyright ownership, documentation of any form of photograph reprints risks an opportunity to overreach copyright, leading to opportunities for abusing reproduction. The digital reproductions of the reprints of Tomoko and Mother in the Bath are omnipresent on major museum and auction websites, displaying Tomoko’s suffering with no restriction.

Ultimately, this photograph of Tomoko is a fragment of the intended viewership extracted from the Smiths’ photo book. The institutional aestheticization of the photograph elevated Tomoko’s body to the status of a photojournalism icon.^[33] The elevation of the icon status gives the author the power to claim total ownership over the subject’s body. Once a photo subject is transformed into an icon, they are part of a cultural phenomenon. Once entering this matrix, the governance of reproduction is unaccounted for.

Aileen Smith’s involvement after Minamata demonstrates the power of photographers regarding their subjects. As the current copyright owner, A. Smith is granted the power to control and circulate the image’s reproduction. These rights managed by A. Smith determine the contemporary audience’s view of the Minamata photographs, especially the case of Tomoko. Smith can reshape the interpretation of Minamata and Tomoko by controlling the symbolic production of the meaning of the photograph. A. Smith’s statement raises awareness of how copyright can affect the photograph’s historical narrative. Her decision to“seal” the photograph and no longer allow reproduction cannot suspend the photograph after time at a mass scale. However, her decision is a way to regain control of the circulation of an iconic image. While copyright’s central role is pragmatic, it equally affects the photograph’s conceptual reading and thus shifts the historical narrative.

About the author:

Barbie Kim is an M.A. student in History of Art and Archaeology at the Institute of Fine Arts, New York University, and a class of Spring 2023 graduate intern at the Center for Art Law. She received her Bachelor of Fine Arts with an Art History Thesis from the School of the Art Institute of Chicago.

Works cited:

Claude Hubert Cookman. American Photojournalism: Motivations and Meanings. Visions of the American Press. Evanston, Ill.: Medill School of Journalism, Northwestern University Press, 2009.

Craig, Carys J., Joseph F. Turcotte, and Rosemary J. Coombe. “What’s Feminist About Open Access? A Relational Approach to Copyright in the Academy.” Feminists@law 1, no. 1 (May 4, 2011). https://doi.org/10.22024/UniKent/03/fal.7.

David D Perlmutter. Photojournalism and Foreign Policy: Icons of Outrage in International Crises. Praeger Series in Political Communication. Westport, Conn.: Praeger, 1998.

Halpern, Sheldon W. “Copyright Law and the Challenge of Digital Technology.” In Image Ethics In The Digital Age, edited by Larry Gross, John Stuart Katz, and Jay Ruby, 143–70. University of Minnesota Press, 2003. https://www.jstor.org/stable/10.5749/j.ctt1rrdb2z.10.

Harada, Masazumi. “The Global Lessons of Minamata Disease: An Introduction to Minamata Studies.” In Taking Life and Death Seriously – Bioethics from Japan, edited by Takao Takahashi, 8:299–335. Advances in Bioethics. Emerald Group Publishing Limited, 2005. https://doi.org/10.1016/S1479-3709(05)08812-6.

Inoue, Miyo. “The Ethics of Representation in Light of Minamata Disease: Tsuchimoto Noriaki and His Minamata Documentaries.” Arts 8, no. 1 (March 2019): 37. https://doi.org/10.3390/arts8010037.

Iversen, Margaret. “Photography, Trace, and Trauma:” In Photography, Trace, and Trauma. University of Chicago Press, 2017. https://doi.org/10.7208/9780226370330.

Magnum Photos. “W. Eugene Smith • Photographer Profile • Magnum Photos Magnum Photos.” Accessed April 4, 2023. https://www.magnumphotos.com/photographer/w-eugene-smith/.

Ministry of the Environment, Government of Japan. “Minamata Disease The History and Measures – Summary.” Accessed April 4, 2023. https://www.env.go.jp/en/chemi/hs/minamata2002/summary.html.

Peter B Hirtle. Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums. Ithaca, N.Y.: Cornell University Library, 2009.

Rosen, Miss. “Minamata, W. Eugene Smith Final Photo Series.” Blind Magazine, June 3, 2021. https://www.blind-magazine.com/stories/revisiting-minamata-w-eugene-smiths-final-photo-series/.

Sand, Michael L. “Latent Image: W. Eugene Smith’s Controversial Minamata Photograph.” Aperture, no. 160 (2000): 14–19.

Smith, Aileen Mioko. “The Photograph ‘Tomoko and Mother in the Bath’: Aileen Archive.” Accessed April 4, 2023. http://aileenarchive.or.jp/aileenarchive_en/aboutus/tomoko_and_mother_in_the_bath.html.

Susan Sontag. Regarding the Pain of Others. 1st Picador ed. New York: Picador, 2004.

W Eugene Smith. Minamata. London: Chatto and Windus, 1975.

W. Eugene Smith Memorial Fund. “Copyright Requests.” Accessed April 4, 2023. https://www.smithfund.org/copyright-requests.

Zuber, Sharon L., and Michael C. Newman, eds. “Making Mercury Visible: The Minamata Documentaries of Tsuchimoto Noriaki.” In Mercury Pollution. CRC Press, 2012.

Extended Reading

Hachiya, Noriyuki. “The History and the Present of Minamata Disease – Entering the Second Half a Century.” Japan Medical Association Journal 49 (March 1, 2006): 112–18.

Minamata [videorecording]: kanja-san to sono sekai = Minamata : the victims and their world. Kanzenban. Documentaries of Noriaki Tsuchimoto. Hamden CT: Zakka Films, 2011.

Timothy S George author. Minamata: Pollution and the Struggle for Democracy in Postwar Japan. Harvard East Asian Monographs 194. Cambridge (Mass.): Harvard University Asia Center : Distributed by Harvard University Press, 2001. http://proxy.library.nyu.edu/login?url=https://muse.jhu.edu/book/72755.

Sources:

1. Magnum Photos. “W. Eugene Smith • Photographer Profile • Magnum Photos Magnum Photos.” Accessed March 1, 2023. https://www.magnumphotos.com/photographer/w-eugene-smith/. ↑

2. Masazumi Harada. “The Global Lessons of Minamata Disease: An Introduction to Minamata Studies.” Advances in Bioethics 8 (August 24, 2005): 299–335. https://doi.org/10.1016/S1479-3709(05)08812-6.299. ↑

3. W Eugene Smith, and Aileen Mioko Smith. Minamata: The Story of the Poisoning of a City, and of the People Who Chose to Carry the Burden of Courage. 1st ed. New York: Holt, Rinehart, and Winston, 1975. 178. ↑

4. Smith and Smith, Minamata, 130. ↑

5. Noriyuki Hachiya. “The History and the Present of Minamata Disease – Entering the Second Half a Century.” Japan Medical Association Journal 49, no. 3 (March 2006): 112–18, 118. ↑

6. Magnum Photos. “W. Eugene Smith • Photographer Profile • Magnum Photos Magnum Photos.” Accessed March 1, 2023. https://www.magnumphotos.com/photographer/w-eugene-smith/. ↑

7. Translation had provided different writing of Tomoko’s last name(namely Uemura and Kamimura), According to scholar Miyo Inoue, Uemura has been a mistranslation, the name had been more widely associated with the photograph and was the translation used by Eugene and Aieen smith, this article will be using first name to address all associated subjects. Inoue, Miyo. “The Ethics of Representation in Light of Minamata Disease: Tsuchimoto Noriaki and His Minamata Documentaries.” Arts 8, no. 1 (March 2019): 37. https://doi.org/10.3390/arts8010037. ↑

8. Michael L Sand. “Latent Image: W. Eugene Smith’s Controversial Minamata Photograph.” Aperture, no. 160 (2000): 14–19. http://www.jstor.org/stable/24472809,15. ↑

9. W Eugene Smith, and Aileen Mioko Smith, “Mercury Pollution Ravaging a Japanese Village: Death-flow from a Pipe,” Life, June 2 1972, 80-81. ↑

10. Ministry of the Environment, Government of Japan. “Minamata Disease The History and Measures – Summary.” Accessed March 3, 2023. https://www.env.go.jp/en/chemi/hs/minamata2002/summary.html. ↑

11. Justin Jesty. “Making Mercury Visible: the Minamata documentaries of Tsuchimoto Noriaki.” in Mercury Pollution: A Transdisciplinary Treatment. Taylor and Francis: 2011. 139-160. 143. ↑

12. Margaret Iversen. Photography, Trace, and Trauma. (Chicago ; London: The University of Chicago Press), 2017, 6-7. ↑

13. Smith and Smith, Minamata, 138. ↑

14. One example is a 1975 reprint that currently belongs to the Art Institute of Chicago. The museum held a reprint where Smith signed the photograph and presented it as a collection object. The curatorial staff confirmed that Smith’s signature indicates it is a reprint directly printed by Smith. ↑

15. Sand. “Latent Image: W. Eugene Smith’s Controversial Minamata Photograph.” 16. ↑

16. Sand, 16. ↑

17. Carys J. Craig, Joseph F. Turcotte, and Rosemary J. Coombe. “What’s Feminist About Open Access? A Relational Approach to Copyright in the Academy.” Feminists@law 1, no. 1 (May 4, 2011). https://doi.org/10.22024/UniKent/03/fal.7, 6. ↑

18. Halpern, Sheldon W. “Copyright Law and the Challenge of Digital Technology.” In Image Ethics In The Digital Age, 143–70, 145-6. ↑

19. Halpern, “Copyright Law and the Challenge of Digital Technology.”145-6. ↑

20. Hirtle, P., and E. Hudson, A. Kenyon. 2009. Copyright and Cultural Institutions. Cornell University Library, Ithaca, NY, 4 ↑

21. Ibid. ↑

22. Claude Hubert Cookman. American Photojournalism: Motivations and Meanings. Visions of the American Press. (Evanston, Ill.: Medill School of Journalism, Northwestern University Press, 2009), 169. ↑

23. Susan Sontag. Regarding the Pain of Others. 1st Picador ed. New York: Picador, Farrar, Straus and Giroux, 2004, 37. ↑

24. Smith and Smith, Minamata, 52. ↑

25. W. Eugene Smith Memorial Fund. “Copyright Requests.” Accessed April 4, 2023. https://www.smithfund.org/copyright-requests. ↑

26. Author’s email exchange with Creative Center of Photgraphy Arhive Registar staffl. ↑

27. It is notable that despite how through Eugene’s narrative, he credited Aileen’s repeatability for the making of the Minamata series, Aileen Smith didn’t really position herself in the history at all. She later became the estate holder of Eugene’s work and is still working on Minamata’s advocacy work. She had publically put Eugene Smith’s name as the sole contributor. ↑

28. Aileen M. Smith. “The Photograph ‘Tomoko and Mother in the Bath’: Aileen Archive.” Aileen Archive, 2008. http://aileenarchive.or.jp/aileenarchive_en/aboutus/tomoko_and_mother_in_the_bath.html. ↑

29. A. Smith. “The Photograph ‘Tomoko and Mother in the Bath’: Aileen Archive.” ↑

30. A. Smith. “The Photograph ‘Tomoko and Mother in the Bath’: Aileen Archive.” ↑

31. According to 17 U.S.C.§204 · Execution of transfers of copyright ownership: (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. (b) A certificate of acknowledgment is not required for the validity of a transfer, but is prima facie evidence of the execution of the transfer if— (1) in the case of a transfer executed in the United States, the certificate is issued by a person authorized to administer oaths within the United States; or (2) in the case of a transfer executed in a foreign country, the certificate is issued by a diplomatic or consular officer of the United States, or by a person authorized to administer oaths whose authority is proved by a certificate of such an officer ↑

32. According to the curatorial staff at the Photography Department in the Art Institute of Chicago, Aileen Smith was not in contact with the museum which has the reprint in Its collection. The department curated multiple exhibitions after A. Smith’s statement intending to reduce emotional trauma for the Uemura familys. ↑

33. David D Perlmutter. Photojournalism and Foreign Policy: Icons of Outrage in International Crises. Praeger Series in Political Communication. Westport, Conn.: Praeger, 1998, 11-20. ↑