A Monthly Column in News Photographer magazine

Deni Elliott and Paul Martin Lester (E-mail and home page), The Practical Ethics Center, University of Montana

9-11 and the Ethics of Patriotism:
When is it Okay to Break the Law?

There is much evidence that September 11th altered almost all aspects of our social and cultural realms. We have yet to attend a lecture, for example, since the aerial attacks without a speaker or an audience member's question bringing up the subject. When asked how long this phenomenon will last, one philosophy professor matter-of-factly replied, "Two years." Perhaps by September 11, 2003 there will be enough written and spoken to make sense of the initial tragedy and subsequent events relegating these stories to history books and little-used websites. But until then, issues arise on a daily basis and we should learn all we can.

This column's issue examines the clash between what is legal and what is ethical in light of news photography of 9-11. Private websites all over the world are using copyright-protected images without permission or even credit. This is of course, nothing new. But what is unique is the question: Because these non-profit websites have to do with the events of 9-11 and beyond, is it ethically acceptable to use downloaded images, although one might want to uphold a general rule against the practice?

The American Legion Post 10 of Wenatchee, Washington sponsors a site ( that features the patriotic poem, "My Name is Old Glory" by Howard Schnauber with photographs not credited to Joe Rosenthal and Tom Franklin. (Once again this is an example in which the public respects the verbal message creators more than the visual, but that's another column). Another site ( called "Afghan Images" was created by Benjamin Doherty, 24, a social work student and a full-time librarian assistant in Chicago. The site gets over 1,500 unique hits a day on a server maintained by Chris Cappuccio of Dream Quest Communications, Bend, Oregon. Doherty exhibits images from television and still sources without credits. Both sites are free, non-commercial entities, but presented for vastly different purposes-one, to rally the support for the war effort and the other to show what most US media outlets have not shown the results of the bombing attacks on Afghan civilians.

To the question of which is the more salient principle, law or ethics, not surprisingly, Chris Cappuccio of Dream Quest writes "ethical responsibility clearly has precedence over legal responsibility in this case." Doherty adds, "Copyright law protects the livelihoods of artists, authors, and any other kind of creative worker. I am not preventing the photojournalists from receiving payment." Associate Professor Orayb A. Najjar, Northern Illinois University elaborates, "I classify news photos that are censored/discouraged by any government or not printed by the commercial media and then distributed by 'dissidents' for a non-profit reason to be ethical if credit is given to the photographer who took those photos." Many photojournalists on the NPPA listserv disagree even if Najjar's condition is met. Yahoo! producer and regular NPPA listserv commentator Mark Loundy states simply (and only for himself), "It's wrong to use someone else's property without asking them. Period." What we have here is a classic clash between appropriation (outright stealing) and fair use (almost always a gray area).

The first issue-whether it is a legal violation of a visual journalist's copyright protection to display her pictures without permission, payment, credit, cutline, context, and so on-is usually a no brainer. Appropriation is illegal. A for-profit, commercial print, television, or website organization that uses images without permission should be prosecuted to the full extent of the law and to the extent of the photojournalist's energy and pocketbook. Loundy writes, "Suddenly people who wouldn't think of using your lawnmower without asking you are stealing thousands of dollars in image licenses. They seem to think that if you can't pick it up, it must not be property." With professional and lay use of the Web now more than seven years old, ignorance is no excuse for commercial usage of material without permission.

But patriotic displays on private, commercial free websites or slides shown by professors in photojournalism classes have about the same legal onus as someone making photocopies of a newspaper clipping and passing them around to relatives and friends. You're just not going to get that many prosecutors worked up to pursue these cases. And, perhaps they shouldn't. Our argument is that these are examples of fair use, not appropriation. With fair use, the user takes no tangible personal gain from the display. The soul purpose of the presentation is that others are encouraged to think a little harder about the topic.

The situation looks different from different angles. Photojournalists sometimes risk their lives to supply their organizations with the pictures. Under those circumstances, many listserv messages from photojournalists contain this absolutist argument: If it is wrong to appropriate pictures for commercial reasons, then it must also be wrong to use them on a fair use basis.

But what is right or wrong can be viewed from the lens of user motivations. For many, the motivation of this non-profit use is political. Doherty admits, "If these images were being presented to the American public through the mainstream media, I would not need to do what I'm doing." Governmental censorship and/or editorial decisions that are not based on the journalism values of truth telling and objectivity provide the motivation for activists to use the electronic attic of the World Wide Web to get the message out.

Governments engage in censorship when officials restrict journalists from covering battle scenes or when civilian employees of the government request or demand that certain images and stories not be released to the public. Editors make inappropriate editorial decisions when they are based on special interests-usually for patriotic or commercial reasons-rather than on a citizen's need for complete information. Walter Isaacson, the chairman of CNN said to his staff recently that "It seems perverse to focus too much on the casualties or hardship in Afghanistan ... we must talk about how the Taliban are using civilian shields and how the Taliban have harbored the terrorists responsible for killing close up to 5,000 innocent people." Editors do not want to risk the ire of their readers, viewers, and advertisers by showing disturbing images of injured and dead Afghan civilians when bombs go astray. They know that when they show such images, they risk severe criticism from their readers.

Paul Spencer, the assistant managing editor of The Hartford Courant learned recently just how fervent his readers' feelings were. He was on duty when a photograph of an Afghan father crying over the body of his baby came over the Reuters news wire. He ran the picture in the first edition large on the front page with a cutline that sent readers to an inside Associated Press story about it. Later editions included a "combined wire" article next to the picture on page one. The play was the same.

Elissa Papirno, the readers' representative for the newspaper reported that 400 readers called and e-mailed while 150 wrote letters complaining of the picture choice and placement on the front page. Most were upset that by this choice the newspaper seemed to side against the US war effort and displayed unpatriotic sympathies for the Afghan civilians. The space should have been devoted, many said, to victims of the twin towers, Pentagon, and airline crashes. "You need to think whose side you're on," one caller said. A news organization that serves the interest of truth has no side.

Governmental censorship of images is not new. One photograph that was delayed for several weeks by censors concerned for the public's reaction was published in Life magazine during WWII. Captioned, "Here lie three Americans . . . ." George Strock's shocking picture of the maggot covered bodies of US servicemen face down in the sand of a distant island's beach was the first picture of killed American soldiers published in a US magazine. Many readers were stunned by the visually graphic image. But Susan Moeller in her chronicle of war photography, Shooting War, noted that many soldiers praised the photograph and the accompanying editorial. A lieutenant wrote, "Your Picture of the Week is a terrible thing, but I'm glad that there is one American magazine which had the courage to print it." A private wrote, "This editorial is the first thing I have read that gives real meaning to our struggle."

The Vietnam War broke new ground in providing equally sympathetic photographs of combatants and civilians. The fact that the American public reacted with equal horror to dead and injured US soldiers and "enemy" civilians was not lost on the Pentagon. The US government has worked hard since then to control public opinion and prevent public sympathy for the perceived enemy.

But within the mind-set after 9-11, most letter-to-the-editor writers do not want to see gruesome images or even know details of the victims of US bombings. American citizens seem happy to self-censor information that is considered unpatriotic. Consequently, most newspapers and television stations are not showing the full range of pictures and video that is available by wire and satellite services throughout the world.

Mark Loundy strongly disagrees with this kind of reporting:

"Going to war is the most serious decision made by any society. If a war is worth waging, then it is worth waging despite the hideous realities. A people who decide to make war even in full knowledge of its horrors have fairly decided that war is necessary. That's why it is critical for an impartial news media to fairly portray the real human costs of combat. The electorate has to be trusted to make informed decisions. Few governments have the courage to do this. A people who ignorantly allow themselves to be led into war in the name of a flag-waving, jingoistic, cartoon ideal have no right to claim that their cause is just. It is our duty to be horrified."
When editors and news directors are not fully informing their readers and viewers of the realities of war because of editorial restraints or commercial concerns, where is someone supposed to go if she wants to see the consequences of the American military's actions administered under her name? Sometimes the only places are websites that, yes, violate the law by not getting permissions, but that ethically fulfill a moral duty to present all the news when the mainstream media outlets will not. That is not only good journalism, but good patriotism as well.

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