Just when Zero Dark Thirty thought its problems were over – the senate investigation was closed and everyone seemed to have lost interest in writing about whether or not the film was pro-torture – a new controversy has trickled out of the gates.
The bold opening sequence of the film is simple, striking, and powerful. It’s a black screen with just the voices of victims involved in the September 11th attacks. One of the voices included is of Bradley Fetchet, who worked on the 89th floor of the South Tower. He’d left a voicemail on his parents machine that day. This week, his mother, Mary Fetchet, told CBS News that the filmmakers hadn’t asked for her permission to use his voice and the recording.
Fetchet had used the recording in her testimony in the first public hearing of the National Commission on Terrorist Attacks Upon the United States, but raised objections to hearing it in the film. In her interview with CBS News, Fetchet said “I used it in situations where I wanted to convey Brad’s story. None of those situations were used for promotional or professional or commercial endeavors.”
So, what is at stake here?
The Fetchets aren’t raising any specific legal claim, but they are clearly upset and want to voice their dismay over the morality and the ethics of using their son’s voice in a work of art without their express consent. A similar objection was raised a few days earlier by Harry Ong, whose sister Betty was a flight attendant on American Airlines Flight 11. ”We’re asking that they apologize and that they recognize that they used Betty’s voice and Brad’s and others at liberty,” Frank Fetchet said in his interview with CBS News.
Legally this doesn’t hold much weight according to First Amendment law expert Eugene Volokh, Professor of Law at UCLA and founder of The Volokh Conspiracy.
“The broader legal question is: When can moviemakers use these kinds of items from the news – items in which ordinary people are saying something in spontaneous moments? The answer is, generally speaking, they can,” Volokh told EW. “To be sure, if somebody illegally eavesdrops on my confidential message to somebody and then broadcasts it, they may be infringing on my rights. But when the person who is speaking is dead, he generally has no more privacy rights. And when the recipient – who might conceivably have some rights in the message even though she’s not the speaker – has herself publicized the message, it’s clear she has no privacy rights, either.”
“When you consciously record your words in a tangible medium, you generally have a copyright in those words. That’s true if you write a handwritten note, if you send an email, or if you record something. In principle, recording it in a voicemail would be just as protected by copyright. Nonetheless, this seems to be a classic example of fair use,” Volokh said. “This is something that has undeniable value at capturing the agony of those killed on September 11. It is used in the context of creating a broader work that is more than just merchandising this particular quote. What’s more, the use doesn’t materially interfere with any financial value of the message that is being used, because the message has no financial value.” He added: “A short message such as this, which has no market value by itself and which has already been published by the mother, can almost certainly be used by people making docudramas and other similar historical works.”
[UPDATE] Sony Pictures issued a statement regarding the complaint: “Zero Dark Thirty was borne out of the tragedy of September 11, a day that left an indelible mark on all Americans, but none more so than those who lost so much on that tragic day. While the film tells the ten year story of how America brought the terrorist behind 9/11 to justice, we recognize that this remains a delicate and painful subject for many. That’s why the filmmakers, beginning before the film’s release, initiated contact with a number of family members of the victims of the 9/11 attacks, including some whose voices can be heard on publicly released tapes. We hope that Zero Dark Thirty is, in some small way, a tribute to those forever affected by the events of 9/11 and to those who worked so hard and risked so much to see that justice was done.”
Sony Pictures and Annapurna Pictures have contributed financially to the memorial at ground zero, and have added a list of “9/11 related charities and resources” to the film’s website. Do they have any additional responsibility to the families of the victims? EW reached out to Annapurna for comment, but has yet to hear back.