BOB GARFIELD:
This is On the Media. I'm Bob Garfield.
BROOKE GLADSTONE:
And I'm Brooke Gladstone. Debate is already raging over Brian de Palma's new film Redacted. He won the Best Director's Prize at the Venice Film Festival, but the early reviews have been decidedly mixed.

The story is based on the rape and murder of a teenaged Iraqi girl in Sumara. The rest of her family was killed, too, by American soldiers last year. And, in fact, as you will hear in the next few disturbing seconds, that rape scene plays like a horror flick. The soldiers are out-and-out psychopaths. The film pushes the limits, then goes right over the top.
[CLIP]
MAN:
[LAUGHS] You ready? You ready for the ride of your life, bitch?
[GIRL SCREAMS]
Shut the [BLEEP] up. Don't you [BLEEP] make a sound. Give it to us.
[GIRL SCREAMS] [LAUGHTER]
[END CLIP]
BROOKE GLADSTONE:
Redacted is ingeniously constructed. The narrative is conveyed through a soldier's video journal, TV news reports, insurgent website videos, surveillance camera footage, excerpts from a French documentary, YouTube clips -- all fabricated, but convincingly realistic. The one part that is not faked comes at the end -- photographs of actual dead, injured or traumatized Iraqis. The eyes of the people in those photos are obscured.

On Monday, at the Film Festival press conference, De Palma blamed that redaction on the film's financier, Mark Cuban, and that prompted a defense from the floor by Eamonn Bowles, the president of Magnolia Pictures, who said that no one had signed releases for the pictures and if anyone complained, the producers could be sued.
EAMONN BOWLES:
Listen, I really like the film. I appreciate it greatly. However, it is a legal issue. You cannot have a --
BRIAN De PALMA:
A specious legal issue.
EAMONN BOWLES:
It's not specious. There would be no legal resource if someone put a case in. No legal recourse whatsoever.
BROOKE GLADSTONE:
The very last shot is not real. It's a gruesome imagining of the corpse of the young girl. De Palma told The Village Voice that he saw nothing wrong with distorting reality in pursuit of what he called "a greater truth."

We asked him why he thought his producers chose to obscure the real faces of the dead.

BRIAN De PALMA:
They, I think, hide behind legalities, stating that they would have to get more insurance, because there's some thing that if a relative of one of the victims in the movie sees themselves or sees a victim from their family and gets extremely upset, they can sue you. [SIGHS] I mean, it has never happened, as far as I know, in terms of war photographs. You don't get releases for war photographs.

What I found unusual about the whole situation was that they had vetted everything in the script. They knew we were using real photographs. If this was always a problem, they could have told me and I could have recreated them.

So I think somebody actually looked at the photos and got extremely upset and said, my God, we can't put this on the screen. Then they hid behind the insurance company.

BROOKE GLADSTONE:
The lines over the eyes of the Iraqis in those images are squiggles very similar to the ones at the very beginning of the film to show redaction. Did you design those bars, those squiggles?
BRIAN De PALMA:
No, I had nothing to do with it. I refused to have anything to do with it. I said, if you're going to redact these photographs, you do it so the world can see you eradicating the suffering faces on these people.
BROOKE GLADSTONE:
How are you getting along with Mark Cuban these days?
BRIAN De PALMA:
Uh - [LAUGHS] - well, Mark Cuban is a man that doesn't return phone calls.
BROOKE GLADSTONE:
If you can't get those black bars expunged, will you be staging your own photos or will you leave it as it is?

BRIAN De PALMA:
Well, it's too late now. The movie's been in festivals all over the world. And I find it kind of ironic. I mean, the fact that Redacted is redacted, you know, there's something about it, because the whole idea of this came from the fact that, you know, in Vietnam we saw the photos. We saw our soldiers hurt and wounded, and we got very disturbed by those photos. And the genius of the architects of this war is that there are no photos.
BROOKE GLADSTONE:
Well, there are. They're all over the Internet. You have some of them in your film.
BRIAN De PALMA:
Yes. But they're not in the mainstream media. I can't get them on a big screen, and that always leads me -- when I don't see something and I have to find it on the Internet, I say, well, why aren't we seeing any pictures like this? Why are we seeing those famous pictures from Vietnam of the, you know, baby running down a street naked, crying out?
BROOKE GLADSTONE:
I don't disagree with the larger point. We have dealt with the issue of the whitewashing of the impact of this war on the program. I guess the question is, if you're going to fabricate everything else, then why mix the real pictures in and open up this can of worms?
BRIAN De PALMA:
I was forced to fabricate everything else because of our legalities. I can't use anything real because it's real. Doesn't that seem rather strange to you? You can put it on the radio. You could put it on your television stations. You can show it in your magazines. But I can't put in a movie? Why is that?
BROOKE GLADSTONE:
Is it because of the difference in the genres, that yours is a drama, a dramatization, and these are ostensibly news reports?
BRIAN De PALMA:
My dear, it's all entertainment. Don't for a second think it's really news.
BROOKE GLADSTONE:
Brian de Palma, thank you very much.
BRIAN De PALMA:
Thank you very much for having me.
BROOKE GLADSTONE:
Brian de Palma is the director of Redacted. And while one could argue vigorously the idea that all news is entertainment, the best legal argument supporting his case is that entertainment can contribute to the public's understanding of the world - that, according to James Boyle, a professor at Duke University and author of Bound by Law: Tales from the Public Domain.
JAMES BOYLE:
Mr. De Palma would actually have a very good claim to fair use, that these pictures are being used as a matter of commentary or criticism, even within the context of a fictional movie. Obviously, it's one that depicts and comments on real events.

The more serious claim is the claim that the relatives of the dead Iraqis who are pictured or the injured Iraqis themselves might claim that these pictures infringe on their rights of privacy. So imagine someone taking a picture of you through the shower window or taking a picture of one of your loved ones, who's dead after an automobile accident.

And it's true that the courts have protected a right of privacy in some of those situations. But normally it has to be, the normal test is, is this outrageous to an average person to use this?

The other part of the test is, is this a matter of legitimate public interest? And if it's a matter of legitimate public interest, then that right generally does not apply.
BROOKE GLADSTONE:
So if somebody takes a picture of me in the shower through the window, I can assure you that is of absolutely no public interest. Therefore I would have [LAUGHS] a good case.
JAMES BOYLE:
You would indeed.
BROOKE GLADSTONE:
But if I were the victim of some terrible crime and a picture was caught of me that I didn't want in the newspaper or even in a dramatization of the event, my case would be less good.
JAMES BOYLE:
That's exactly right. And the sort of really strong example would be something where the images of the dead or the injured are themselves the matter of public debate. So it's not just a matter of sort of prurient interest in looking at autopsy photographs, which has often been a subject of litigation, but it's actually something where the main commentary of, about the event demands these photos.

And, of course, there is a substantial amount of criticism of current coverage of the Iraq war that says that the stuff that appears in mainstream media is amazingly censored, self-censored, that is, by the people who are photographing and by the newspapers and by the TV stations, much more censored than, for example, the pictures of the Vietnam war.

So to the extent that that is part of the public debate about the Iraq war, the claim that we're not seeing the true pain, the true suffering that's going on, both for Iraqis and American soldiers, then I think Mr. De Palma's claim would be, that's what I'm showing here; I'm showing that this is real, that these are real people who bleed, who are in pain, and I've put this in a fictional film precisely to make that point, to shock you and make you think, my God, it's not just fiction; it's reality.
BROOKE GLADSTONE:
I'm still puzzled about the kind of suit that De Palma's producers worry could be brought in this case. And how would the plaintiffs, the victims or families of the victims in the photos, frame their argument?
JAMES BOYLE:
People who would say that there is a cause of action here, that Mr. De Palma could be sued, would point out that the families of the astronauts on the Challenger space shuttle were able to prevent the disclosure of their audiotapes of their last seconds, or that President Kennedy's family was able to prevent the disclosure of the autopsy photographs of him.
BROOKE GLADSTONE:
These were huge news stories. Why were they protected?
JAMES BOYLE:
Well, I think the argument was that hearing the pain and confusion and fear of people who were about to die adds nothing to the political debate.
BROOKE GLADSTONE:
But isn't that the point of these photographs in De Palma's case -- misery, fear, mayhem, horror, the very things that you say have been censored about this war?

JAMES BOYLE:
You know, that -
BROOKE GLADSTONE:
How can you on the one hand prevent that stuff on that basis and then permit it on the very same basis?
JAMES BOYLE:
If the whole NPR thing doesn't work out, Brooke, you have a career as a lawyer.
BROOKE GLADSTONE:
[LAUGHS]
JAMES BOYLE:
I would say that the answer there is that we knew that these people, the astronauts in the space shuttle, we knew that they died. Obviously, it was an awful set of moments. I think the answer here is that the pain of the Iraqis has not been making it to our screens, has not been making it to our newspapers. I think the claim here, Mr. De Palma is saying, is this is actually a necessary political comment.
BROOKE GLADSTONE:
Thank you so much.
JAMES BOYLE:
It's my pleasure.
BROOKE GLADSTONE:
James Boyle is a professor at Duke University and coauthor of Bound by Law: A Comic Book about Fair Use and Documentary Film.