Redacting Redacted

I have a post weighing in on the controversy surrounding Brian DePalma’s Redacted, a fictional film about the rape and murder of an Iraqi girl by a group of American soldiers, over at MediaCommons. I lost about half the post in a Googling accident, so it feels a little incomplete, but basically, DePalma has been forced to remove several documentary photographs from a montage at the end of the film, substantially altering the effect of that montage and potentially weakening DePalma’s critique of the representational lenses through which we see the war in Iraq.

Update: Jim Emerson has a really interesting take on the Redacted controversy on his Scanners blog. And while I share Emerson’s take that DePalma’s position is likely untenable legally and that his NY Film Fest press conference was a bit of a publicity stunt, I remain interested in the boundaries between fiction and documentary that DePalma is playing with here. But Emerson goes on to ask some interesting questions about the role of the Internet in re-mediating representations of war and speculates about how the ease with which images now circulate on the web shapes the use of war images. And he’s absolutely right that the controversy over Redacted’s images is now “part of the movie” itself, part of the lens through which it will be seen and discussed.

Update 2: Emerson also has an entry discussing the circulation and “ownership” of Eddie Adams’ famous Vietnam War photograph, “General Nguyen Ngoc Loan Executing a Viet Cong Prisoner in Saigon,” an image that we’ve discussed in some detail in my “Documenting Injustice” seminar this semester, in part in terms of these slippery questions of ownership and circulation. Emerson raises some important questions that are worth quoting:

The Bush administration has tried to prevent the press from photographing even the coffins of unidentified US military casualties in Iraq and Afghanistan. Do government censorship efforts change our view of war images? Are the legal or ethical standards for showing victims of accidents or natural disasters different from those for showing casualties of war? [...] Does the passage of time change how journalistic images are used in fictional contexts? Would you rather not think about this? I don’t have definitive answers to these questions. Do you?

Like him, I’m not sure I have any definitive answers to these difficult questions, although I think his point about the passage of time may be an important one, at least in terms of how these images are received. I do think that the issues of “government censorship” are complicated by the fact that so many other “uncensored” representations, taken by Iraqi citizens or independent reporters, have become available. That doesn’t excuse the censorship, but it shows how documentary images can continue to circulate despite these efforts to control them.

Update 3 (October 14): I see that the Self-Styled Siren wrote about this topic over a month ago. Sheez, I’m behind on everything these days.

Update 4 (October 19): Just wanted to acknowledge that I misspoke slightly in my original description of the Redacted controversy.  For a clarification, see the comments by A below.

13 Comments »

  1. Chris Said,

    October 9, 2007 @ 8:59 pm

    I haven’t read all the available info on this, but according to the distributor, the issue was the use of photos in a commercial work — i.e., they didn’t have the rights to use the photos that DePalma used, and couldn’t get the rights, so they had to black them out or get sued.

  2. Chuck Said,

    October 9, 2007 @ 9:05 pm

    That was my understanding as well, but I realize it’s not terribly clear from this post. I’m not convinced Cuban and Magnolia are holding these images back for political reasons because many of Magnolia’s films are quite controversial politically. Part of the issue for me is the lack of clarity in Fair Use laws that create confusion about whether these images can be used without the risk of a lawsuit (or outright prohibit their use). And I’d argue that how DePalma is using them could be considered within the public interest. Clearly Magnolia is trying to profit from the film, but DePalma’s critique of representations of the war seems to complicate things a little. I’d also argue that DePalma’s use of the images would have little to no negative effect on the potential market for or value of the photographs he’s using. Definitely an interesting case.

  3. Chris Said,

    October 10, 2007 @ 9:30 am

    You’re right, of course, that there are probably a number of factors in play here. But given that Mark Cuban has deep pockets, and the film is very high profile (the subject matter, and the fact that DePalma directs it), a lawsuit is almost a guarantee.

    The Fair Use issues seem important here, I agree. But if it were playing on PBS instead of releasing to theatres and for sale on DVD, I’d say Magnolia would have a better case for the “public good” they’re serving.

    I don’t know what the statutes say, but I don’t know that having a negative effect on market value is a part of the legal argument (how would I know; I’m no lawyer). Since Magnolia doesn’t have the rights to use the photos, the rights owner doesn’t really have to provide a reason. And, depending on who took the photos, they might not want them used in this film for political reasons.

    I admit, I haven’t seen Redacted, don’t know whose photos they are, etc. This is all just conjecture. But if it were my business decision to make, I would hesitate to use something I didn’t have rights to simply because of the huge lawsuit. I had to cut something out of one of the DVD extras on my film (a song playing on the radio in the “making of” documentary), and though there was probably a case to be made that it was just playing while the cameras were rolling, I’m pretty sure — if the film were high profile enough — someone would get sued.

  4. Chuck Said,

    October 10, 2007 @ 3:27 pm

    The Center for Social Media (CSM) has the best overview for what qualifies as Fair Use, at least when it comes to documentary. Obviously, Redacted is not a documentary, but I’m intrigued by those brief “intrusions” of the real into an otherwise fictional film, and I *think* that they could argue that the Redacted montage fits the definition of “public interest.”

    I’m in the same boat in that I haven’t seen the film, so I’m engaging in conjecture myself, but I do think that current definitions of Fair Use often inhibit creativity. Your experience with the DVD extra sounds like one I’ve encountered in some of the CSM materials. Writing this after a long day of teaching and grading so forgive the fragmentary tone.

  5. Chris Said,

    October 10, 2007 @ 9:50 pm

    At least you have an excuse. My tone is fragmentary with no good reason.

    I do agree that Fair Use confusion often inhibits creativity, but in truth, I also understand the position that someone owns something and has a right to control how it is used. It gets murky when it deals with a public issue.

  6. Chuck Said,

    October 10, 2007 @ 10:03 pm

    Yeah, fortunately I’ve only had to deal with it from the perspective of an academic (movie stills, course packets, etc). I tend to be fairly “liberal” with fair use issues, but I might change my mind if I felt my content was being used inappropriately.

  7. Chris Said,

    October 11, 2007 @ 9:12 am

    we tend to be fairly liberal with it, too, and i think educational purposes are a valid “fair use” — but yeah, if someone started using my stuff inappropriately or to further an agenda with which i disagreed, i think i’d want to correct the situation.

  8. The Chutry Experiment » Documenting Iraq Said,

    October 12, 2007 @ 5:22 pm

    [...] up in a CNN report on Redacted.  I’ve been thinking a lot lately about documentary lately because of the debate over Redacted, so I’m now curious to check out these films as well.  First, I think [...]

  9. newcritics - » The Whole World is Wacthing: Medium Cool, Redacted, and Documentary Said,

    October 18, 2007 @ 9:05 pm

    [...] photographs from the film’s final montage (see, for example, the Siren’s post and my own). I haven’t been able to see the movie yet, and probably won’t be able to see it as [...]

  10. A Said,

    October 19, 2007 @ 12:50 pm

    I’ve seen the film, and you’re clearly misinformed.

    There was never an issue about whether any of the photos would be REMOVED from the film. The issue is that the faces of the dead and grieving Iraqis in the photos have been blacked out, to render the people unrecognizable. There’s never been ANY issue about fair use in the copyright sense of the term here, at all. The photographers are known, and credited, and wanted their photographs to be seen, in the film. The issue, and the reason the photos were ostensibly altered, was ostensibly concern on the part of the insurers (and therefore the distributor) that some relative of one of the people pictured in the photographs might be upset by the photograph, and sue. Whether such a suit would be tenable is perhaps a much harder question to answer than it might first appear. What if this person saw the film in Iraq? What are Iraq’s laws with respect to privacy, infliction of emotional distress, etc.? Would such a person be able to obtain jurisdiction over the distributor in the USA? Etc., etc. Honestly, though, I think the “legal issues” were merely a pretext on the part of the distributor. If these same pictures were published in a magazine, or newspaper, there wouldn’t have been a problem. Wartime photojournalism is rife with examples of pictures of war carnage, in which the victims are recognizable, and there’s never been a problem, because it’s “news,” or “social interest”. And there’s no viable distinction on the basis of whether this is a “commercial” film, or a documentary; even documentaries (like magazines) are released TO MAKE MONEY. As are newspapers. The pictures should have been kept in the film; there’s no excuse for this sort of censorship.

  11. A Said,

    October 19, 2007 @ 12:52 pm

    In my last phrase, I meant to say, “The pictures should have been kept INTACT in the film; there’s no excuse for this sort of censorship.” That is, the faces shouldn’t have been blacked out. I didn’t mean to imply that the pictures were removed from the film.

  12. Chuck Said,

    October 19, 2007 @ 1:09 pm

    Thanks for the clarification. I must have misunderstood the reports about the images. I based some of these points on the discussion of Fair Use at the NYFF, which I shouldn’t have done. But I absolutely agree with your more general arguments that the legal issues are a “pretext” on the part of the distributor for altering the film. And you’ve articulated something I had wanted to suggest and that is that this is partially an issue of where and how these images are circulating.

    There would be little to no controversy over these images in more explicitly documentary contexts (in newspapers and magazines, for example). And I agree that the film should have been kept intact. In fact, my curiosity about the film stems from this use of documentary images in a feature film (even one based, however fully on “true events”).

  13. Chuck Said,

    October 19, 2007 @ 1:22 pm

    Here is where the question of Fair Use came up in debates about the film. I mention this only to point out where I was slightly misled about the issues regarding the photographs. My fault for not being a little more attentive to the precise nature of this debate.

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