This is part of a series of book excerpts from The Independent Filmmaker’s Law and Business Guide: Financing, Shooting, and Distributing Independent and Digital Films
designed to introduce filmmakers and others interested in creating content on the legal issues involved in the filmmaking process.
Despite the short-term glut in the market, documentaries have become an increasingly important part of the film industry as well as tools of public discourse. Since documentaries only rarely receive national theatrical distribution, audiences do not treat nontheatrical distribution as an aesthetic judgment against the film. They expect to find relevant documentaries through Netflix, Amazon, or PBS. In addition, crafting short-form documentaries is becoming part of the core competence for journalism majors, since the ability to write the story, film the content, edit the narrative, and publish the work reflects the fundamentals of multimedia journalism today.
Since documentary films hover closer to the news media business than narrative theatrical motion pictures do, documentary makers may wish to consider using traditional and nontraditional news publishers to obtain credentials and gain access to some of the content they wish to cover. Having press privileges may be quite helpful for certain documentaries, and producing shorter news pieces alongside the full documentary may serve as a way to promote the eventual release of the film and improve the access for the camera crew.
Finally, it is important to remember that U.S. law provides all speakers and writers, including the press and documentary filmmakers, much greater legal protection to publish material than the protections afforded by most other nations. Particularly if the individuals identified in the documentary are residents of Europe, the Middle East, or Asia, the filmmakers should at least be aware of the significantly different laws regarding standards for defamation, invasion of privacy, content with religious overtones, and content that may be considered political advocacy. The information in this chapter does not extend to the challenges faced by filmmakers producing content that may be deemed scurrilous or denigrating—and may even be banned outright—under the laws or standards of other countries or cultures.
The filmmaker has significantly less need for licenses and approvals to shoot a documentary than to create a feature film. He relies upon the truthfulness and accuracy of the film presented as much as permission for the legal rights to film the locations, people, and other elements that make up the story.
1. Accuracy in Storytelling: Overcoming Defamation
The greatest legal protection for a documentary filmmaker is indeed the truthfulness and accuracy of the film presented. The primary concerns raised come from complaints regarding defamatory presentations or invasions of privacy by individuals or companies. Under U.S. law, a party claiming that she was defamed must prove the falsehood of the information. This is much more protective than a rule establishing that truth is a defense, because it puts the burden on the plaintiff to prove that the statements are falsehoods. In so many situations, proof of truth or falsity is extremely difficult to establish. Moreover, if the documentary features individuals who are public officials or public figures, then the filmmaker would only be legally liable if he knowingly used false material or was reckless in the choice of material presented. Even if the featured individuals are private figures, the filmmaker would have to be at least negligent in the use of the false material.
Since litigation is expensive, most distributors want to know that they can win any lawsuit without going to trial. Therefore, documentary filmmakers must be able to demonstrate readily that they were not negligent in the making of their film or in its depiction of any persons or companies. This is a higher threshold than the law requires, but it reflects a degree of caution on the part of the distributors not to be caught in expensive and drawn-out legal battles.
To assist in establishing the accuracy of the filmmaking process, the filmmaker should take careful notes regarding all his sources, and record all the statements made by his sources as faithfully as possible. If sources are videotaped or audiotaped, however, the filmmaker should be sure to request permission at the time of each taping. Every statement of fact should be verified to the fullest extent possible. This includes the ages of individuals, their educational backgrounds, their work history, and their relationships with the parties in the documentary.
If one party makes serious allegations against another, the documentary filmmaker will need to investigate and corroborate those allegations. Often, the lawyers for the distributor will ask for evidence of corroboration, just as they would expect it from network news crews. And unlike the nightly news or newspapers, documentary filmmakers are assumed to have had sufficient time to investigate leads and corroborate information. For example, if a filmmaker is given a story about dangerous working conditions at a slaughterhouse, he should find out enough about the source to know if the person was recently denied employment at that plant, fired from that plant, or otherwise had a personal grudge that could color the accuracy of the complaints. This does not make the information inaccurate, but it does highlight the need for corroboration by multiple sources. The whistle-blower may very well have been part of the misconduct before deciding to tell his story, and his motivations and behavior must be carefully investigated to show that the filmmaker has taken reasonable care in researching the story.
By maintaining logs, writing down the sources of leads, capturing interviews on tape and retaining those tapes, and confirming times, dates, and locations of all the major events, the filmmaker can show he has taken appropriate care in researching the story and presenting each detail so that there can be no claim of defamation.
2. Avoiding Invasions of Privacy
Perhaps nowhere does the law protecting the rights of the filmmaker differ more greatly from the industry practice than in the area of invasion of privacy. Under the law, if the information is newsworthy or of public interest, then there can be no invasion of privacy for accurately depicting the story. Minors may be afforded slightly greater protection, but as long as information is public and of public concern, the news reporter and documentary filmmaker are free to use that information. Despite the law, by practice, some distributors demand a signed release proving permission from every person depicted on the screen. Documentary filmmakers must balance the need for documentation and caution with the need to capture the footage necessary to tell their story.
In most states, the laws include (1) false light, (2) publicity rights, (3) intrusion into seclusion, and (4) publicity given to matters of private concern. Statements which put persons into a false light are legally very similar to defamatory statements. The false statements need not be as contemptuous as those required for defamation, but the statements must still highly offend an ordinary person. In some states, the rights of publicity are also included as a form of privacy, but publicity rights have increasingly been treated separately as a commercial interest and are discussed elsewhere throughout the book.
Protections again intrusion into seclusion primarily protect against physical intrusion, such as trespassing and planting hidden cameras or microphones in the home of a subject. The use of a high-powered lens used to view through windows might qualify in some jurisdictions, and voyeurs’ use of electronic equipment to see under women’s skirts or peek into bathroom stalls has extended notions of physical intrusion into public venues. These are obvious invasions of personal space, and such offensive techniques simply should never be used.
The most important and challenging privacy consideration for documentary filmmakers is the protection against publicizing matters of only private concern. A filmmaker should not publicize a private fact if that information is not of legitimate public concern and the publication of that fact would be deemed highly offensive to the ordinary person.
There is little clarity regarding the legal point at which a matter becomes a matter of public concern. Criminal activity is generally considered public, and almost any activity by elected officials and entertainers is fair game. Stories that disclose misconduct or highlight important matters of public policy are all likely to qualify as being of legitimate public concern. On the other hand, a newspaper’s casual reference to a student-body officer’s previous sex change operation was deemed not a matter of public concern since it was unrelated to the news story.
Similarly, if a 12-year-old is competing in a spelling bee not open to the public, such a private endeavor, despite the inherent drama, does not become a matter of public concern. On the other hand, if the spelling bee is a public event that anyone can attend, then there can be little claim that taping the competition itself violates the privacy of the participants. This would not, however, extend to the private areas of the competition, such as the green room or the rooms in which the students were waiting along with their parents. A filmmaker does not get to publicize a personal story merely because it makes for good drama.
Fortunately, public concern is not the only test. For the private facts disclosed to be actionable, they also must be highly offensive to a reasonable person, not merely to the particular person who was the subject of the documentary footage. Graphic film footage of accident victims may fall into this category, if the accident was not a matter of public concern and the victims’ bloody bodies, personal agony, and vulnerable state were such that a reasonable person would find the broadcast highly offensive. If the rescue is newsworthy, however, then the filmmaker has much greater leeway.
Simply put, filmmakers should pay attention to the privacy rights of the people in their documentaries, being careful to ensure that if individuals depicted have not consented to be in the documentary, they are involved in matters of public concern or their depictions are not highly offensive.
3. Using Consent Agreements to Acquire Rights
Since privacy laws are so ambiguous, the overwhelming practice is to seek permission to film individuals or at least to inform them that filming will be taking place. An actual permission agreement is the most effective tool available to the filmmaker and distributor to eliminate the potential for lawsuits. If the distributor can remind the offended individual that she signed a release, most often she will drop her objections.
Amazingly, most people will sign such releases.
The release used can be very vague or extremely detailed. The release used by the makers of the mock-documentary Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan was very specific. In this highly controversial film, individuals who were unaware that the movie was a parody were included in scenes that were turned into grotesque situations. The release they signed gave the film company clear and unambiguous rights and has thus far withstood a number of legal challenges from participants who objected to being the unwitting butt of star Sacha Baron Cohen’s jokes:
The Participant agrees to be filmed and audiotaped by the Producer for a documentary-style film (the “Film”). It is understood that the Producer hopes to reach a young adult audience by using entertaining content and formats.
The Participant agrees that any rights that the Participant may have in the Film or the Participants contribution to the Film are hereby assigned to the Producer, and that the Producer shall be exclusively entitled to use, or to assign or license to others the right to use, the Film and any recorded material that includes the Participant without restriction in any media throughout the universe in perpetuity and without liability to the Participant, and the Participant hereby grants any consents required for those purposes. The Participant also agrees to allow the Producer, and any of its assignees or licensees, to use the Participant’s contribution, photograph, film footage, and biographical material in connection not only with the Film, but also in any advertising, marketing, or publicity for the Film and in connection with any ancillary products associated with the Film.
4. The Participant specifically, but without limitation waives and agrees not to bring at any time in the future, any claims against the Producer or against any of its assignees or licensees, or anyone associated with the Film, that includes assertions of (a) infringement of rights of publicity or misappropriation (such as any allegedly improper or unauthorized use of the Participant’s name or likeness or image) . . . (d) intrusion (such as any allegedly offensive behavior or questioning or any invasion of privacy), (e) false light (such as any allegedly false or misleading portrayal of Participant), (f) infliction of emotional distress (whether allegedly intentional or negligent), . . . (k) defamation (such as allegedly false statements made on the Film). . . .
The Borat film producers were accused of burying the waivers in voluminous boilerplate, including much less likely defenses to claims for an “act of God” and damages from “terrorism or war,” but only those two waivers were unrelated to the crass conduct Sacha Baron Cohen had planned for the unwitting participants in the film. Although the original waiver paragraph used on Borat included waivers for items not listed above, this slightly shortened list is a useful and appropriate example of the waivers that can be used by documentary filmmakers.
* Jon Garon is admitted in New Hampshire, California and Minnesota.
Adapted from The Independent Filmmaker’s Law and Business Guide: Financing, Shooting, and Distributing Independent and Digital Films, A Capella Books (2d Ed. 2009) (reprinted with permission).
Jon Garon is professor of law, Hamline University School of Law; of counsel, Gallagher, Callahan & Gartrell.