New law prohibits photographing underwater corpses

MICHIGAN–The lake, it is said, never gives up its dead. Now a new Michigan law, prompted by a documentary on the wreck of the Edmund Fitzgerald, may prevent journalists from photographing the corpses that the state’s waters hold.

The law makes it a crime to “knowingly photograph or publicly display a photograph of all or a portion of a decedent located in a human grave” without the permission of the next of kin. The term “human grave” includes not only traditional gravesites but also shipwrecks, mines or other locations from which recovering a dead body would be difficult.

One of the bill’s sponsors, Sen. Walter North (R-St. Ignace), said the measure was introduced in response to complaints from relatives of the victims of the 1975 shipwreck in Lake Superior, when the Edmund Fitzgerald sunk with a crew of 29 on board. In 1994, a diving expedition led by explorer Fred Shannon discovered the location of the wreck and filmed a documentary about the site. The video included brief images of a mostly-decomposed body.

Critics of the law observed that the scope of the prohibition may be larger than intended. Ric Mixter, a video producer and member of Shannon’s 1994 expedition, said that the law, if interpreted broadly, prohibits any public display of a photo of a corpse in a grave, which could ban not only Shannon’s documentary but also photographs of accident scenes or even pictures of Holocaust victims.

Rep. Pat Gagliardi (D-Drummond Island) told the Associated Press that the actual scope of the law was much narrower.

“It’s pretty clear that we’re talking about disasters that happened in the Great Lakes, in Michigan waters, and the use of film without the family’s consent for commercial value,” he said. “It’s very narrowly tailored.”

Dawn Phillips, general counsel for the Michigan Press Association, told the AP that she could not predict how broadly courts might construe the law’s scope. In any event, she said, it does appear to give relatives of the dead a new privacy right.

“Up to now, we’d pretty much said invasion of privacy is a personal right, and once you die it’s gone,” she told the AP.

Phillips also speculated that, whatever its scope, this new privacy right might not stand up in court if challenged as a violation of the First Amendment.

Although the law creates exceptions for law enforcement, medical or scientific purposes, it makes no allowance for news reporting. Violation of the law is a felony punishable by a two-year prison sentence and a $5,000 fine. (M.C.L. 750.160a)