In the hit documentary series Making a Murderer, filmmakers Laura Ricciardi and Moira Demos raise a lot of questions about whether police officers and prosecutors acted improperly while investigating and prosecuting Steven Avery and his nephew Brendan Dassey for the murder of 25-year-old Teresa Halbach.
Now at least three peripheral subjects from the docuseries say they were either unaware their photographs or personal image would be used in the film, or asked the filmmakers not to use footage of themselves after the fact.
Penny Beerntsen — the victim of the 1985 sexual assault for which Steven Avery was wrongfully convicted — recently told the New Yorker she was not aware the filmmakers planned to use a photograph taken as evidence immediately after her assault in the film.
"Beerntsen, for her part, was dismayed to discover that the filmmakers had obtained a photograph of her battered face from the 1985 attack and used it without her knowledge," the New Yorker's Kathryn Schulz writes. She goes on to quote Beerntsen as saying, "I don't mind looking at it, but my children should not have to relive that.... And everything we're dealing with, the Halbachs are dealing with a thousandfold."
In addition, one family member says Avery's ex-wife, Lori, was surprised and upset to see images of herself and her children used throughout the series. Brad Dassey, who is Lori's step-son and Brendan Dassey's half-brother, tells Rolling Stone she is distraught that her family photos were used without her permission.
Steven Avery's ex-fiancée, Jodi Stachowski, recently told a producer for HLN that the last time the filmmakers contacted her, she asked them not to use the footage they shot of her years before in the documentary.
"I asked [Laura] and Moira not to even use anything with me in it…. Because I told her it was all lies," she said. "She called me and asked me if I wanted to do another interview before the documentary came out, and I told her no.... I want nothing to do with it, I don't want any part of it, and I don't want to be in it."
Stachowski, who now says Avery abused her, went as far as to suggest that she only defended Avery in the film because he threatened her. "I said 'It's all lies' because Steven called me and told me — it should be all on police phone records — that if I didn't say anything good and nice about him I'd pay," she said.
In response to a question about Lori's claim, a representative for the filmmakers told Rolling Stone that "the filmmakers have material releases for all of the photos and that the claim is false." They declined to provide that documentation, or to comment on Beerntsen's or Stachowski's claims.
The three claims raise three distinct, and difficult, questions: Is it ethical to use photographs of a sexual assault victim without her permission? Should documentarians seek both parents' permission to use images of their children, and — in the absence of that permission — are they obligated to blur the unwilling parent's face, and the faces of her children? And, finally, do filmmakers have an obligation to respect a subject's wishes to not appear in the story long after securing permission?
Rolling Stone asked these questions of Ed Wasserman, professor of media ethics and dean of the UC Berkeley School of Journalism, and Betsy West, a veteran documentarian and professor of professional practice in media and society at Columbia University's School of Journalism.
Did filmmakers have the right to use the photograph taken of Beerntsen after her assault? "They certainly have a right to use the photo if it's part of the public record," West says. "It's really a question of their judgement. Just because you have the right to do something doesn't mean it's the right thing to do."
One of the important considerations in Beerntsen's case, Wasserman says, is that she had already come forward publicly to talk about her assault. Because of that, filmmakers did not have an obligation to conceal her identity, he says. "I would certainly be uncomfortable with it, and it does recall a terribly degrading experience, but I also think I would argue — not too strenuously, but I think I would argue — that it has a narrative purpose. It shows just how horrific the crime was," Wasserman says. "It shows why there was so much anger concerning the crime directed at Avery at the time."
What about Avery's ex-wife, Lori: Was she right to be upset that photos of her family were used without her permission? Wasserman thinks so. "The privacy rights of people who are connected peripherally to crimes are routinely violated by the media, and I think that she does have the right to have her likeness not exposed in this context," he says. "It's hard to come up with a strong 'newsworthiness' argument, that her likeness was something that was, in some sense, integral to the story.... If she's upset with it, I don't blame her."
West has a different question. "Are they her photos? Who took the photo? The person who took the photo owns the copyright to the photo," she says. While there are some restrictions on taking pictures of children in places like schools and hospitals, those issues don't seem to apply here, West says. "The filmmakers say they had permission to use the photos. If that permission comes from the people who took the photos, then they have the right to use the photos."
And what about Jodi Stachowski's claim that she wished to be removed from the film? Did the filmmakers have an obligation to respect her wishes? Wasserman believes they, at the very least, had an obligation to incorporate her later claim that she lied because Avery threatened her into the finished film.
"If somebody is coming back and essentially recanting, basically saying, 'I said this under duress, it didn't reflect what I felt then, it sure as hell doesn't reflect how I feel now,' I think the filmmakers have a very strong obligation to reflect that in the finished product," he says. "Now, it doesn't mean that you expunge what they said earlier but it means that you have to contextualize it in a very different way."
West agrees: "She gave the interview; they have a right to use the interview, but to not reveal the subsequent events and what she is saying, I think, undermines their credibility."
What would West, a documentarian, have done in this case? "I think in a case like this, transparency is probably the best thing: to indicate that they have broken up, that she now says she was lying in the interview, she says she was coerced, she says she was afraid of him, or he was violent. And then you let the viewers decide."