Who Owns Barney Clark's Legacy?

Who Owns Barney Clark'e Legacy?

Questions about release of a film on his heart surgery

"Please, please, work this time!" begged Dr. William DeVries. He had just snapped into place the polyurethane left ventricle of a new heart for his patient. The second attempt to install a ventricle worked, and Barney Clark made history by becoming the first person to receive a permanent artificial heart. The operation that gave Clark a precarious hold on life (he was to die 112 days later of multiorgan system failure) was videotaped as part of a documentary on his struggle to survive. Now a complex legal and ethical debate is going on over the question of whether or not that tape should be shown. At issue, in essence, is who owns the legacy of Barney Clark.

The program was made at a cost of $150,000 by KUED-TV, the public television station of the University of Utah, where the operation took place. The Clark family cooperated on the project, because, it says, it believed the surgery segment would be used only for medical or scientific purposes. The family now contends that releasing the tape would violate its right to privacy.

The hour-long documentary shows Clark's chest being cut open, the removal of his heart and the implanting of the artificial organ. Says Una Loy Clark, Barney's widow: "I feel that it is really not in the best of taste to show these things. It smacks of sensationalism." She wept openly at seeing what she called her "loved one's body being exposed and cut." Though they would like to have the film aired, officials of the University of Utah, KUED and the hospital all say they will abide by Mrs. Clark's wishes. Others involved in the dispute, however, are not so acquiescent. Local commercial television stations not only want to lay claim to any footage that KUED ultimately airs but have considered taking legal action to get at any material the station retains at Mrs. Clark's behest. Ernie Ford, managing editor of KSL-TV News in Salt Lake City, has argued that the public has a right to see the tape because it was made in part at public expense.

But legal experts argue that KSL would first have to establish the fact that it had a proprietary interest in the film. To do so, KSL might argue that it had a right to the tape because the station was part of a "pool" arrangement that KUED made with local television outlets. Indeed, KUED has already shared three minutes of footage on the operation with commercial stations. But exactly how much film KUED agreed to release under the arrangement, made orally, is a matter of dispute between the public and private stations.

The next dispute to be resolved would be the Clark family's right to privacy against the public's right to know. Complicating matters, the hospital had Clark sign two seemingly contradictory releases. One, drawn up especially for him, restricts use of any film of the operation to purely "scientific presentation." The other, a standard publicity consent form, permits broadcast of films of Clark taken in the hospital.

If the Clarks argued in court for their right to privacy, say legal authorities, they might have difficulty winning the case. Columbia University Law Professor Vincent Blasi points out that courts generally have upheld similar privacy claims only if the material is "not of legitimate concern to the public" and is "highly offensive." Both points are debatable at best in this case.

One way to resolve the dilemma would be for KUED to release the film without the disputed surgery segment. That would satisfy Clark's widow, but might not prevent other stations from suing to obtain the dramatic outtakes. Indeed, release of a censored version is opposed even by Producer-Director Brian Capener, who made the documentary for KUED. Says he: "Our position is that if there is no operation, there is no film." This file is automatically generated by a robot program, so viewer discretion is required.