Is "Tomoko Is Bathed by Her Mother” fair use?

The difference between fair use and matters of integrity is not always crystal clear. Those involved in visual communication are often called upon to decide which takes precedence.One of the most powerful images of the twentieth century is W. Eugene Smith’s photo “Tomoko Is Bathed by Her Mother.” The image shows a child with a congenital disease caused by mercury pollution in Minamata, Japan.Although Tomoko’s parents originally gave permission for Smith to take the photo in 1971, after Tomoko died in 1977 they were upset by the continued use of the photo and asked that the image not be used. In 1998 Smith’s widow, holder of the copyright on the photo, complied with the parents’ wishes and forbid future use of the image. This impacted exhibitions of the “One Hundred Greatest Photographs of the Twentieth Century” and also was seen as a disservice by those who felt Tomoko’s image should be able to be used under “fair use” guidelines as it has helped in the fight against industrial pollution.Do you think the original image should still be in circulation under fair use guidelines or should the wishes of the family take precedence as Aileen Smith decided it should?PLEASE NOTE: Permission to use the image discussed in this case study, “Tomoko Is Bathed by Her Mother,” was respectfully denied. The image can be seen online here. The image below is from the same series and reproduced with permission from Aileen Smith.