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.)

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.

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.)

(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.