Follow-Up on the SWAT Office and Little Boy Photo
Radley Balko | December 13, 2006, 10:44am
After I posted the image of the SWAT officer and the little boy on Monday (with comments at The Agitator), the photographer who snapped the picture, Justin Cook, sent me an angry email. I called him, and we chatted for about an hour. His contention was that I and many other people around the Internet had taken the picture out of context. He said the moment he captured was a tender, humane one. I replied that my original post drew no conclusions about what happened on that particular raid, only that the picture effectively captured many of the absurdities of the drug war, and the increasingly militaristic way we police it.
Though our phone conversation did at least end cordially after beginning somewhat hostilely, it's safe to say that we still disagree. Cook initially accused me of libeling him and violating his copyright. The former is absurd. The latter is bit more murky, so I agreed to take the image down from the Reason site and from my personal blog, and to replace it with a link to the photography competition that's hosting it.
I also invited Cook to write a response that I promised I would post here and at The Agitator, with an ensuing response from me. Here it is:
As a photojournalist there will always be criticism, wild distortion and gross speculation over the content of my images. While I must have a thick skin, I feel it necessary share my side of the story at times. There is not much for me to say other than that during a chaotic day, this one moment was an ironic sliver of compassion and humanity. You were not there for this event and simply the reality of what this image stands for is not congruent with your stance. While I do not want my image associated with your views and opinions, that seems inescapable at this point. I do however completely support your freedom of speech.
I am not going to argue with you further. I see your point and consider your efforts admirable. However my real, authentic experiences (which you seem to disregard) lead me to disagree whole-heartedly with your own conclusions. I feel that no matter what I say here you will use it to further assert your point and diminish my image and the events I witnessed. This is a losing battle for me and I am gracefully bowing out. But I do want to thank you for numerous things. Thank you for taking the image down – the use was unauthorized and likely falls under copyright infringement. In the future if you continue to champion the cause of the common man, remember to respect the laws that protect my rights as a photographer as well. Thank you for unknowingly increasing my notoriety as a photojournalist; creating an uproar like this means that I must be doing meaningful work. And finally, thank you for your efforts at being a watchdog even though we agree to disagree.
From our conversation, I surmised that part of Cook's concern was that he was given some pretty remarkable access to the Durham SWAT team, particularly for a college student. And he's still quite supportive of what they do. As the person who took the picture, he feared that people, including his contacts at the police department, might mistakenly attribute my and others' comments on the picture for his opinion. So I'm happy to give him the opportunity to say he doesn't agree with the way I see that picture.
He saw it as a tender moment, where a SWAT officer took a little boy in to pee after a raid on a suspected drug dealer. I made no judgments about the particular officer in the picture, and I didn't make any conclusions about the merits of this particular raid, except for the usual objections to dynamic entry raids for nonviolent drug offenses, particularly when there's a child inside (I did note that the Durham police department has been involved with mistaken raids in the past, and I commented on one particularly disturbing sentence in the description that went along with the picture -- both fair game, I think). I thought the picture was a striking example of just how far the government will go to stop people from getting high, and that the image more generally wasn't one I associate with a free society.
As for the specific raid that led to that photo, Cook says he doesn't remember if any drugs or weapons were seized. He says he seems to remember a woman being taken to jail, but he isn't sure. He says the little boy and his mother were inside at the time of the raid, but didn't live in the home. The boy's mother was not the woman arrested. I did make efforts to contact Cook to get those details prior to posting the picture, including emailing the editor of the college paper he worked for, checking Internet phone listings, and checking information for the state of North Carolina. Turns out, he's currently in Florida, interning with the St. Petersburg Times.
Finally, I would certainly agree that Cook has done some meaningful work, even if in ways he doesn't necessarily intend. It's really an amazing picture. He also has an impressive portfolio, particularly for someone just out of college.
NOTE: Here's the original set of photos , when they first appeared on Cook's blog.
lunchstealer | December 13, 2006, 1:00pm | #
While I have little use for Stanely Fish or Jaques Derida, I think this guy needs to understand that what people see in his image and what his image 'means' are not absolute. If you take an image of a man holding a submachinegun next to a little boy who's peeing,* people are going to have wildly different interpretations of that photo. They have NOT spent that day with those cops, and as with any photo, they may come across it competely out of context. This is a cross that, as an aspiring (and from his portfolio, quite talented) photojournalist, he will need to learn to bear. Photojournalism, even more than print or broadcast journalism, is a single moment in time that carries little or no context outside the visuals it contains. But beyond that, his full commentary was included in Radley's Agitator post, so if we're not getting his happy message of police-state hope, he can only blame himself. He provided commentary and context and they still didn't convince us of his interpretation.
The notion that artists 'own' their works has grown far beyond its utility. In a commercial sense, they own the rights to exploit the work for money, and some reasonable control over whom they allow to use their photo. However, they do not own the ideas that they communicate. They cannot mandate that we feel when we see their art what they felt when they created their art. This is the fallacy of intent in art. What a novel means is largely independent of what the author meant when he wrote it.
If you write something unintentionally funny, it's a hilarious joke. The fact that you were serious when you wrote it does nothing to negate the hilarity of your writing. If you take a photo of little boy being taken to use the bathroom not by his mother or father, but by a heavily armed, heavily armored shock trooper holding a submachinegun, you should understand that not everyone is going to be comforted by the fact that the shock troop in question was nice to the little boy. Some people might just be disturbed that, in America - the America that liberated Western Europe from fascism and liberated Eastern Europe from Stalinism - that we have men with submachineguns battering down doors to people's homes with little children inside in the middle of the night, looking for contraband.
Anyway, hopefully this will be a good lesson that while he can effect the world with a powerful image, some of those effects will be different from his intentions. He is a journalist, not a propagandist, and he needs to understand that he cannot control the truth he reports.
*(and again, they couldn't let the kid close the door and have some privacy? Seriously,
Sam Franklin | December 14, 2006, 7:37am | #
"Careful Radley you may have a no knock raid on your home soon looking for copyrighted material with your violating of this poor guys rights."
If using this photograph isn't fair use, then I'm moving to Sweden.
Photojornalist: Your use of those pictures is copyright infringement.
Real Journalist: Oh, you have no idea about that and neither do I. We are journo's, not lawyers. The only law we know about is FOIA law.
Photojournalist: Let me put it another way. I think my contingency lawyer may see copyright infringement here.
Real Journalist: Tell you what -- can I patch in the copyright lawyer for my publication. Maybe she can weigh in on this helpfully.
Photojurnalist: Look, she is not going to want to talk to me directly because I may already be represented. I hinted so above. Why don't you talk to her and we will see if the photo stays up. If it does, I will weigh my options at that time.
Journalist: That is a cordial offer and I accept. Will get in touch with legal. Good day.
Photojournalist: Good day.
* parties hang up; journalist calls legal *
Journalist: Hello, legal.
Legal: [Name redacted]! Good to hear from you. Did your office or house get raided again.
Journalist: No, no, this one is different.
Legal: Different? A FOIA question. I notice you have been around for quite a few months and haven't yet done your first FOIA. By the time Weigs was here this long he had completed many. Don't let that Delaware Kid show you up.
Journalist: Well, the botched raid beat is really more of a state thing.
Legal: States have document procurement procedures too, sometimes.
Journalist: Point taken. Anyway, what I have in front of me right now is a copyright ifringement thingee.
Legal: Thingee?
Journalist: *laughs* Gimme a break there, McBeal, I am just a layperson.
Legal: Point taken. Who is ripping off your stuff [name redacted]?
Journalist: Actually, I have been accused of infringing a third party copyright.
Legal: Oh my gosh. [Name redacted] Magazine takes allegations of copyright infringement quite seriously.
Journalist: *fibbing slightly* I know. That was the first thing I told the photographer. I said I had to call you right away. And so here we are.
Legal: Photographer, eh?
Journalist: Well, he calls himself a "photojornalist." His politics seem to be pretty opposite of mine. He is just out of college and kind of . . . oh, I don't know *trails off*
Legal: Naive? Trying to micromanage the way people interpret his snapshots?
Journalist: You know how the younger generation is. All those kids in their teens on 9/11 seem to have ended up with a hard on for cops. Even some people in their 20s.
Legal: Yeah, I know. Tide is turning though and those beds are gradually drying up. At least I hope so. there has got to be a morning after.
Journalist: So in the mean time I need to know how far I can take things with this LEO groupie's picture.
Legal: What is it a picture of?
Journalist: A military gear policeman closely escorting a child of about 5 who is urinating into a toilet.
Legal: Can you see the kid's genitals?
Journalist: No, no. The photo won a contest. That is how I heard about it. I think we are clear on that.
Legal: You should email me that picture. For the time being, let me guess, the picture looks kind of creepy with some big Ninja cop standing over a little African American boy . . .
Journalist: Actually, the boy is white. That is part of what makes the picture so great. Also, the policeman has a big rifle . . with . . . well, the way the rifle is pointed, it is not pointed at the boy, but it is not exactly pointed away from the boy, it is pointed at the floor sort of resting on the policeman's hip.
Legal: Ahh, very phallic.
Journalist: The kid who took the picture has a terrific eye. You look at that barrel sticking out of the guys crotch, vaguely pointed down toward a toilet bowl -- there are more than a thousand words in that picture. Then, the way this phallic police guy is super-imposed onto a very parental scene, helping a kid take a whizz. I can see where if you have a certain mindset, then you would find the picture comforting . . .
Legal: Go on, we switched to a retainer arrangement with [name redacted] Magazine, so you can talk all day if you like . . .
Journalist: Well, the fact that a considerable number of contempary Americans would find that picture comforting is reall the story here. I can't really come out and say that in a blog entry, or *sound of wheels turning in journalist's head*
Legal: Well, I will let you figure out how to wake up the good folks of Murica. From what I can see, you are pretty darn good at that! Moving along to copyright law, fair use is extremely non-determinative. Even the law itself gives four really vague factors to consider, and then says the judge can consider any other factors besides the 4 that she wants. Not a safe, safe harbor in any case.
Journalist: What is the exposure?
Legal: Well, there are statutory damages that can balloon up into preposterous, but definitely legally colorable, claims of money damages, but that is not really what is driving the advice I am about to give.
Journalist: What's on your docket, then, McBeal?
Legal: Well, first of all, under the fair use test, one of the factors is "how much of the work did you take?" It is not clear if this refers to number of words taken, numer of pixels taken, percentage of words, take, percentage of pixels taken, very fuzzy, lots of cases, few answers, but . . .
Journalist: But if I take an entire photo, and that particular photo even won a photo contest on its merits as a self-standing photo, then . . .
Legal: Exacty, yadda, yadda, yadda, we don't want to be defending that. The fact that the photo competed in a contest suggests that it has independent economic value, and that is also very important from a fair use standpoint. Like I said, fair use is indeterminate. We might win. This is newsworthy stuff, like the Pentagon Papers or that stuff Time published about the pardons back in the 70s. Diebold had to ditch its copyright suit against those meddling kids recently. Would be a fascinating area to litigate . . .
Journalist: So maybe I should keep the photo up?
Legal: Well, one more comment, and then my advice. My comment is that someday [name redacted] magazine may want to keep control of one of its photo's. In a situation where the infringer is likely to claim a fair use defense.
Journalist: And your advice is, let me guess, pull the picture.
Legal: *touches nose*
Journalist: Are you there, McBeal? Did we get cut off?
Legal: Oh, I touched my nose. I forgot you can't see that through the speaker phone. yeah, you gotta pull it. But maybe you can link to the places the kid has the photo up on the Net. At least you can force the kid to pull the photo down from his own sites if he is so gung ho about trying to force people to see the photo the way he thinks it should be seen. You will probably want to continue your commentary. Did te kid make you promise confidentiality when you spoke.
Journalist: No, he did not.
Legal: Then I think you know what yor next blog entry should be. Don't forget to include all the links you can find so the kid has to really scrub the Net.
Journalist: Will do, Legal. Thanks for the time.
