Report
Resources for Filmmakers
PDF Version
Press Release
Center for Media & Social Impact, School of Communication, American University
Funded by the John D. and Catherine T. MacArthur Foundation
Research Team:
Prof. Patricia Aufderheide was principal investigator, and Center for Media & Social Impact Associate Director Angelica Das was project manager. Graduate fellows Stephanie Brown and Olga Khrustaleva assisted with research. Consultant Deborah Goldman contributed legal research. Legal fellow Anuj Gupta assisted Ms. Goldman with legal research. Graduate fellows Daniela Pérez Frías and Daniel Farber-Ball contributed to production.
TABLE OF CONTENTS
Executive Summary
Introduction
Filmmaker or Journalist?
Challenges Faced
Journalistic Standards
Safety and Security
Public Relations
Insurance
Legal Issues
Partners
Assessing Risk
Recommended Practices
Journalistic Standards
Safety and Security
Public Relations
Insurance
Legal Issues
Partners
Next Steps
Appendices
A: Resources
B: Recent Litigation: Summaries and Lessons
C: Participants
Endnotes
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EXECUTIVE SUMMARY
Many of the issues most important for our society to recognize and discuss are also those that powerful people or institutions don’t want made public. Non-fiction filmmakers who tell truth to power often face aggressive attack from powerful individuals, governmental bodies, businesses and associations. How are independent makers, often working outside of media institutions for long periods of time, and sometimes untrained in journalistic practices, working with this reality? What are the risks, and can they be mitigated to encourage more and better expression on the important issues of the day?
This report finds that the risks of doing such work are well-established in the investigative journalism community, but not always well known in the documentary film community. It documents attitudes, practices, and problems. It then addresses how makers of such work may best mitigate known risks, and what kinds of support may help them more than they are today. It finally suggests next steps to expand opportunities and share existing knowledge about how to lower risks while telling truth to power.
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INTRODUCTION
Documentary makers often produce work that challenges the terms of the status quo, whether through investigative reporting, revealing an underrepresented viewpoint, or signaling an overlooked trend. For instance, FRONTLINE challenges the pharmaceutical industry in Hunting the Nightmare Bacteria; in Hot Coffee, director Susan Saladoff questions the frivolity of lawsuits and big business’ call for tort reform; and Suzan Beraza explores how plastic bags became so ubiquitous in Bag It.
Such work is widely recognized as having an important role to play in a democracy. Michael Rabiger, author of the most influential directing textbook for non-fiction filmmakers, writes that “documentary is that rare medium in which the common person takes on large, important issues and shakes up society.” Describing the many ways that makers bear witness to often-hidden realities, he writes, “The consequences of all this for democracy, and for a richer and more harmonious tapestry of cultures, are incalculable.”[1] Scholar Bill Nichols notes that “documentary film contributes to the formation of popular memory” with “perspectives on and interpretations of historic issues, processes and events.”[2]
That identity is core to the DNA of documentary filmmakers’ membership organizations. The International Documentary Association (IDA) describes documentaries as fostering “an informed, compassionate, and connected world”.[3] The executive director of the Documentary Film Network of Canada, Lucette Lupien, describes documentary as playing “a fundamental role in defending democracy, tolerance and openness to the world.”[4]
Many of the issues that are most important for our society to recognize and discuss, however, are also issues that powerful people or institutions don’t want made public. Non-fiction filmmakers who take on the task of bringing these issues to light often find themselves facing aggressive attack from individuals, governmental bodies, businesses and associations with substantial connections and resources at their disposal.
Filmmakers who take on such projects run a real risk that one or more of their subjects will attack them, whether it is through surveillance during or after production, litigation or its threat, or through a smear campaign. Director Laura Poitras took the drastic move of relocating to Germany in order to avoid frequent detainment by Homeland Security and ICE when crossing the U.S. border during productions, including her film about Edward Snowden’s release of classified documents, Citizenfour. Fredrik Gertten was handed a lawsuit by Dole Food Company after production on Bananas!*, Wal- Mart: The High Cost of Low Price faced a million-dollar PR assault, and SeaWorld accused Blackfish of factual inaccuracy. They face risks even long after their work is completed, as a recent terror attack at a screening of the film Vessel, about an abortion doctor who works offshore, shows. And their subjects often share their risks.
This study looks at recent situations where makers of long-form, non-fiction, moving-image work have faced such challenges in order to draw lessons from past experience and learn—from filmmakers and their lawyers, insurers, producers and programmers—what kinds of support are available and what kinds of support are needed.[5]
This study was built on 53 interviews of makers of non-fiction films and TV programs, programmers, funders, lawyers, and insurers, as well as a wide search of literature and participation in public events. Interviews were conducted with the promise of anonymity, if so preferred, under terms approved by the Institutional Review Board of American University; all interviewees also were given an opportunity to make their participation public, once they saw the draft report. Interviewees were chosen through a variety of methods: because of their institutional position, because of a record of production in the area, because of their professional status or involvement with the challenges of making such work.
We look first at the cultural divisions that can keep people who think of themselves first as filmmakers and those who identify as journalists from sharing the same practices or resources. We then look at the challenges facing makers of public affairs documentaries from the subjects of their work, and at the level of risk that our environmental scan suggests. We next consider a range of recommendations for best practices in a risky environment, and finally propose next steps.
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Filmmaker or Journalist?
We interviewed both people who identify as journalists and those who identify as filmmakers. We could not find any difference in their core missions to explore a subject of public interest honestly and compellingly. However, we did discover cultural differences in training, language and emphasis, which can obscure important common ground. This is of particular importance as news organizations such as Al-Jazeera, CNN, and The Guardian have launched documentary series that compete for the same kind of films generally showcased in non-journalistic venues including theaters, HBO, Showtime and public TV film series such as POV and Independent Lens.
There is no professionalizing credential necessary for either filmmakers or journalists; that is, unlike a nursing or accountancy, you can practice without the credential. People who went to journalism school are no more recognized as journalists than others, and similarly for those who took degrees in film production. Journalism associations and organizations avoid definitions that require professional status. For instance, the Society of Professional Journalists (SPJ) simply expects someone conducting journalism to abide by its ethical standards. [6] According to Mark Bailen of the law firm BakerHostetler, the definition of “journalism” itself has evolved to focus on function rather than association. Suggested qualifications have included whether or not journalism is the person’s primary occupation (and source of income) and whether (referencing a bill to create a federal shield law) the person’s “primary intent [is] to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest”.[7] Documentary organizations similarly avoid definitions beyond the general description of the activity.
Furthermore, the common characteristics of ethics codes for journalists appear largely to be shared by filmmakers. A scan of journalistic ethics codes found several principles shared among the journalistic codes:
The journalist serves the public, and is ultimately accountable to the public;
The journalist is truthful both to literal accuracy and in the choices to shape meaning;
The journalist is transparent about process and does not misrepresent him/herself;
The journalist does not fabricate information.
The journalist seeks out all sides to the story and presents the story in a way that allows the viewer to make an informed decision.[8]
Filmmakers of non-fiction, social-issue work generally found the first four of these principles unexceptional, and wholeheartedly agreed; even though filmmakers sometimes found the journalists’ ubiquitous language about serving the public to be less familiar in their cultural context, they understood their work as oriented generally to the public good. Because their work is so often shaped as an essay or revealing of a personal perspective, of theirs or their characters, they found the last point to be a stumbling block. They certainly believe in fairness and accuracy. But filmmakers also believed that their job was often to tell a story from a particular point of view, and to capture the richness of that experience, not to report an issue from different sides.
If filmmakers and journalists were in closer dialogue, they might develop language about the similarities of long-form, point-of-view work to feature articles, op-eds and other forms of essay journalism. (Ethics codes are usually written with the daily reporter in mind.) But such conversations have yet to begin.
The difference highlighted in this last point reflects, we believe, different cultural experiences and training rather than a fundamental disagreement over values and purpose, or even methods. Journalists and non-fiction filmmakers have historically worked in overlapping but different networks.
Their workplaces have often been very different. Journalists typically have trained in traditional journalistic institutions, and even if they operate as freelancers, they generally have discussions with colleagues and editors about expected risk given mission, have access to corporate manuals that provide some guidance, and learn the ways institutions manage those risks. They are not the final arbiters of their work; their editors are. Filmmakers usually work in small production companies or teams; when working in a commercial environment, those teams typically contract with the entertainment unit of a media corporation rather than the journalistic unit. They often get final cut on their work. Their professional discussions have usually been much more about techniques and procedures to most effectively and efficiently tell a compelling story. They often do not have those discussions with superiors or get familiarity with an ethics-oriented manual or standard security procedures.
While journalists often define their work by the challenges of reporting, filmmakers often define it by the aesthetic challenges of the craft. This is reflected in language; journalists refer to their subjects as “sources,” while filmmakers often use the word “character.” In reality, of course, reporting and aesthetics are inevitably enmeshed, as makers decide how to tell their researched story.
Journalists often start a project with a topic to research, finding interviewees along the way; filmmakers often develop close relationships with subjects and follow them through a drama or conflict. Thus, their very notions of what access constitutes is different. Journalists often look for representative sources, while filmmakers are looking for good characters. From these different points of access, they may well end up in the same or similar places, but the relationships they build and the promises, implied or explicit, that attach are often different. Journalists often consider their work done when it is published; filmmakers typically are deeply involved not only in the launch of their film but in engaging different networks and publics with it long afterward. These differences then affect judgments on many decisions along the way, such as whether to pay a vulnerable subject for time spent with the maker, or whether to involve oneself in the subject’s life.
The angles of approach can make for different practices. They can also make for mutual suspicion, and lead to false assumptions. Journalists who come from a daily or print background often regard ordinary filmmaking practice as sliding too far into fiction, and treat aesthetic decisions as corruptions rather than as one of many choices. The conventions of textual journalistic narrative have been far more limited than one that uses sound, moving image and text combined. However, the traditional conventions of public affairs documentaries on television—a host, voice-of-god or host narration, b-roll reinforcing narration, essay structure—still influence journalists, even though many public affairs television series are moving away from those conventions. One investigative journalist who makes long-form documentary commented, “I feel like documentary is art in the best moments, but investigative reporting is about the information and what people tell you on camera, so it’s a balancing act.”
Filmmakers often fear that journalists do not understand the long-term relationship with subjects typically engendered in a long-form film project, and sometimes they do not. One interviewee recounted that a film crew recently struggled in a shoot in Pakistan after a team of journalists who had quickly come and gone had alienated key subjects. However, investigative journalists usually also undertake long-term relationships with subjects, and they prioritize their subjects’ safety and welfare. Investigative journalists also struggle with the rules of thumb taught in their professional training because of their commitment to subjects.
Journalists, on the other hand, often suspect that filmmakers do not have the same stern requirements for veracity that they do, although interviewees for this study expressed a shared commitment to verifying for accuracy. Indeed, in an earlier study we found that filmmakers experienced anguish when working for non-journalistic organizations that forced them to violate this ethos.[9] Similarly, journalists often are concerned that filmmakers may not exercise as rigorous control over factual accuracy, and fear that filmmakers may be swayed by their relationships to avoid hard questions. Yet filmmakers interviewed for this report universally testified to routine fact-checking procedures, and could describe with care the choice of framing and contextualizing in order to offer a perspective that they could stand behind. Several referred to the expectation that they could show their film to any of the parties involved in the story and have it hold up to attack.
Finally, there is acute shared awareness of the need for particular care with accuracy and defensible perspective when boldly asserting and developing a perspective. For instance, Brave New Films makers, who unabashedly make films advocating a position (their latest film is called War on Whistleblowers: Free Press and the Natioal Security State), have a meticulous process of fact-checking and carefully plan framing to not only be effective, from their perspective, but also to be justifiable to those who may not agree with that position, and withstand attack. For investigative journalists, such care is of the highest concern when making accusations against powerful government officials and corporate actions, accusations that clearly stake out a position.
In the area where there is the greatest perceived difference in culture between filmmakers and journalists—around objectivity as opposed to acknowledged perspective—there is also an emergent conversation. Journalists have traditionally expected to provide an account that can be justified as balanced. Filmmakers generally expect their work to be seen as fair, but not necessarily balanced; they treasure the emotional power and resonance of a point of view, both of subject and of maker. At the same time, the question of balance has become a contentious point for journalists, as the user-centric environment has forced a closer consideration of the reasons journalists select the stories, interviewees and narrative framework they do. For some more traditional journalists, an acknowledged point of view is perilously close to advocacy. For others, transparency is a gold standard in the fast-moving world of digital journalism. Articulating the argument, albeit in a contentious way, is controversial journalism scholar Jeff Jarvis, analyzing the changes in journalistic practice. He argues:
Isn’t advocacy on behalf of principles and the public the true test of journalism? The choices we make about what to cover and how we cover it and what the public needs to know are acts of advocacy on the public’s behalf. Don’t we believe that we act in their interest? As the late Columbia Journalism Professor James Carey said: “The god term of journalism — the be-all and end-all, the term without which the enterprise fails to make sense, is the public.”[10]
Less argumentatively, Rabiger—a filmmaker as well as professor and writer-- noted, while stressing the importance of verifying for accuracy, the similarities between the forms, both of which must take responsibility for their purposeful choices: “Like journalism, documentary filmmaking relies on distilling a story from what is remembered or recorded and involves reduction, simplification, rearrangement and re-creation—all hazardous to the truth”.[11]
FRONTLINE takes on this issue head-on, in its extensive journalistic guidelines available online.[12]It articulates its standards with three words: independent, fair and honest. Its extensive elaboration allows its makers to operationalize what each of those words mean, and to make sure they are doing everything they can to offer viewers a responsibly assessed interpretation of an important issue. The public TV production organization Independent Television Service (ITVS) has embraced this standard as well. At the same time, it is worth noting that FRONTLINE’s standards are firmly grounded in journalistic tradition. As well, both journalist and filmmaker interviewees noted that guidelines can never be hard-and-fast rules. For instance, FRONTLINE’s producers may not pre-screen work for interested parties; in many cases, both journalists and filmmakers have shown work to interested parties with helpful results, and some lawyers encourage this practice, to identify trouble early and minimize later conflict.
Journalists are just beginning the critically important conversation about the implications of taking ownership over their choices of framework and interpretation; filmmakers are only beginning an equally crucial conversation on the justifications and limits of point of view in serving the public.
While cultural differences and real challenges exist in interpreting a mission to be fair while acknowledging perspective, there was, overall, more common ground than differences in practice and mission. Some makers saw no conflict between the two fields. “Documentary is true independent journalism,” said filmmaker Brian Knappenberger. He saw himself as a non-fiction filmmaker tackling the same challenge that journalist Finley Peter Dunne put to journalists: “journalism is best when it’s comforting the afflicted and afflicting the comfortable.” Gregg Leslie of the Reporters Committee for Freedom of the Press commented, “We’ve always had a broad definition of journalist. Our main concern is distinguishing between journalists and true activists who have a cause and do everything in support of a cause.”
We found broad acceptance of fundamental ethical standards and the practices that operationalize them, although the two cultures approached the question of perspective from different angles. For instance, everyone agreed that basic accuracy was critical; everyone routinely put a high priority, sometimes the highest priority, on the safety and reputation of their vulnerable subjects. Everyone agreed that some perspective is not only unavoidable but must be closely analyzed since it will need to be justified when challenged.
In some cases, filmmakers embraced the definition of journalist, particularly after the Crude case, in which a filmmaker was subpoenaed for outtakes relating to a court case (see Appendix B), highlighted the value of journalistic shield laws. The Central Park Five’s David McMahon noted, “We’re more aware than ever of the importance of conducting ourselves like journalists and of defending the protections that journalists are afforded.” The PBS public affairs documentary series FRONTLINE draws no distinction either. Its producers look for “credible, thoughtful reporting combined with powerful narrative, a good story well told,” and call their makers “nonfiction producers.”
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CHALLENGES FACED
The challenges posed by the task of taking on today’s powerful can take place in arenas ranging from the media to the courts to the filmmaker’s personal computer. They include journalistic standards, safety and security, public relations, insurance, legal problems, and partnership relations.
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Journalistic Standards
Whether makers think of themselves as filmmakers or journalists, they typically subscribe to basic tenets of good journalistic practice as identified in the commonly shared ethical principles and also demonstrate that they practice them. For instance, although both journalists and filmmakers have a wide range of ways of verifying accuracy of facts and of keeping records that they have done so, there was consensus that they should and do so verify. Makers also have a range of approaches to interviewing touchy or potentially hostile subjects, and of course it depends on the circumstances. Some wait until all other pieces are in place, while others go to potentially hostile sources at the start and cultivate a relationship, engendering trust that the subject’s point of view will be fairly rendered. But there is general agreement that contacting the target of an investigation is a routine part of the job.
But makers, particularly filmmakers, are often unfamiliar with resources providing information on journalistic standards, whether from associations like the Radio Television Digital News Association, the International Federation of Journalists, the Society of Professional Journalists, and the Online News Association; public interest organizations such as the Electronic Frontier Foundation (EFF), the ACLU, and the Electronic Privacy Information Center; or journalism nonprofits such as the The Poynter Institute, the Nieman Journalism Lab, or the Shorenstein Center on Media, Politics, and Public Policy. One filmmaker’s comment was typical: “I know about some resources, but it would be good to have a place where the information about all the resources is collected.” Makers also often express concern about the lack of a forum to frankly raise troubling questions about journalistic standards and procedures; this is much more commonly expressed among filmmakers.
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Safety and Security
Makers both in the filmmaking and journalistic cultures worry about the safety and security of themselves and their subjects, as well as the security of the information they gather. Sometimes independent makers find support for safety and security from funders or distributors. More often, as freelancers or independent operators they find themselves improvising, and are poorly supported by organizations they contract with. Makers often share the risks of their subjects in conflict zones. They try to minimize risk while in the field and to keep information secure in an effort to protect themselves and their subjects. Everyone agrees that the state of encryption software is frustrating.
Seasoned makers are familiar with the problems, but people new to the challenge often lack ways of assessing risks to personal safety and security. There is no clearinghouse for information, and no place they can routinely go either to share hard-won knowledge or garner it. Robert Greenwald noted, “Having traveled to Pakistan and Afghanistan, there was no place I could turn for advice or guidance. I spent countless hours reaching out trying to find reliable ‘fixers,’ and others. Some kind of clearinghouse could literally be life-saving.” Sandra Whipham from BRITDOC said, “A lot of independent filmmakers won’t even know how to do a risk assessment, and if you are going to a war zone, this risk assessment form can be 30 pages long. They haven’t asked, who is going to protect you who is not in the field?” Many makers were also unfamiliar with threat modeling, a basic procedure for assessing risk.[13]
Safety of the filmmaker
Makers often find themselves in unsafe situations while filming, whether because of being in a conflict zone, investigating unsavory activity, or reporting from a poorly governed area. Filmmakers and journalists have both died at work; at least a hundred journalists around the world died in 2014 alone.
Veterans approach these challenges in different ways. Generally, they try to make sure they were only taking calculated risks (see Appendix A). They keep lines of communication open with a home base. Some alert human rights and other organizations of their whereabouts and the issues they are investigating and make their contact public, hoping to raise the stakes for doing them harm and to generate publicity should bad things happen. One filmmaker stressed the importance of having a local producer (sometimes called fixers), which many makers use. A few get hostile environment training of the kind that BRITDOC sponsors for its filmmakers who need it. This kind of training is part of the practice for anyone commissioned by a broadcaster in the U.K., but for freelancers, it is expensive as well as lengthy. Makers also make copies of their data and store copies in other places to protect the project should anything happen to them. The most widespread flagged problem was the isolation of the individual producer who was working without an organization for support, training, or production insurance.
Makers also can find themselves at risk after making their films. After he made Fahrenheit 911, Michael Moore faced enough death threats to hire bodyguards and take a break from filming for two and a half years.[14] Pamela Yates exercises extra precautions when returning to places where she has made films about mass atrocities and gross injustices.
Safety of the subject
Both people who think of themselves as journalists and those who think of themselves as filmmakers have a top-priority concern for the safety of their subjects, though they recognize the limits of their ability to protect them. No one wants to be the agent of another’s injury or death. Interviewees put this concern above the value of having a release form in cases where subjects change their minds or were reluctant to go on the record.
In some cases, though, subjects volunteer for the risk of exposure and may even believe that more exposure might provide more security or a solution. This was the case with Mexican reporters threatened by gangs in Reportero, and with subjects in Give Up Tomorrow, who hoped that the film might bring attention to an unjust verdict.
In other cases, such as of whistleblowers, preserving anonymity was of great importance. In the case of 1971, about civil disobedience, the subjects expected to become public figures with the release of the journalism (both textual and filmic) about them. But until that moment, guarding their privacy was centrally important. The filmmakers also maintained anonymity of other sources in the film. In dealing with female subjects who have suffered gender-based violence, bullying, or cyberbullying, Nancy Schwartzman is careful to have face-to-face, offline conversations with them, never to show their faces online, and never to use their names, unless given explicit consent.
However, makers also realize the limits of what they can promise to their subjects. One pointed out that some situations are non-negotiable; when you are crossing a border, for instance, you are vulnerable to the demands of the border officials. Makers emphasized the importance of being transparent with subjects about the limits of their abilities to protect them. “People trust us to tell their stories properly, so I want to be really clear about things that I can control and the things I can’t control,” said Marshall Curry. “I have creative control of my films, so I can promise characters that they will be represented fairly in the final film.” But he recalled a circumstance where a subject was in the middle of a legal battle, and a subpoena was a real possibility. “I told him that if I got subpoenaed I’d fight it. But I have small kids, and at that point if I lost I wasn’t prepared to go to jail for months and months. So I told him he needed to use his own brain about what he was sharing with me because I couldn’t promise 100% control.”
Securing information
In order to protect subjects and their own projects, filmmakers consider the best ways to secure information, in the areas of communication and storage.
While encryption and anonymization tools exist for communication and for search, they are often difficult to install and master, clumsy, and restrictive. Even makers supported by large organizations find that their organizations do not support or train for use of encryption, and indeed may have massively insecure websites or mobile apps. They may also find themselves in the field without being able to use security that is on their computers, for instance email (although mobile apps such as TextSecure and RedPhone are available). Furthermore, because the adoption of encryption or anonymization software can be detected by surveillance tools, such resorts are widely regarded as flagging yourself for further scrutiny and many subjects refuse to use them. As Edward Snowden and the ACLU’s Christopher Soghoian have repeatedly noted, easy-to-use encryption tools need to be developed and become pervasive for security to be routine.
Makers do use encryption for communication and search in specific instances. Far more often, they try to observe good practices while working in the clear. They try to have conversations face to face where possible. They pay attention to privacy settings online. They delete information where appropriate.
To keep stored information secure, makers use a range of strategies, including keeping records on air-gapped hard drives, installing encryption software on computers, and hand delivering information rather than sending any of it electronically.
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Public Relations
Makers of investigative documentaries have often encountered publicity attacks from targets of their attention. For instance, Wal-Mart retaliated with a $1 million publicity campaign against Brave New Films’ Wal-Mart: The High Cost of Low Price. Energy companies conducted attacks on Josh Fox’s Gasland, as documented in his The Sky Is Pink and Gasland 2. Blackfish and Bag It also faced industry public relations attacks. Campaigns can attempt to discredit the work by attacking facts, challenging premises, discrediting characters or makers. They can challenge directly or pervasively sow doubt. They can go after the makers, their backers, or members of organizations such as film festivals that interact with them. These attacks can drain energy and time from future projects, and cost a lot of money to refute. Often, however, makers have been able to leverage the smear campaigns as well, for publicity, and some smear campaigns may ultimately have harmed the reputation of the corporations leading them.
In the independent film community, a cottage industry has grown up of communication support for independent work, including public relations firms, social media experts, and impact organizers. Each has a role to play in preparing for trouble. However, in some cases the needs may call for experts in crisis communications.
Public relations expert Prof. Darrell Hayes noted that crisis communications is a specialized branch of public relations, focused on a contest for control of message and reputation. He pointed to two main strategies in a smear campaign: to discredit information and discredit where it comes from. In a conflict, “neither side typically lies outright,” he said, “but they selectively portray their truth in their own way. You are always working to improve your own credibility and lessen the credibility of the opponent.”
In such a conflict, government and corporations are typically at a disadvantage with the general public, he noted: “A filmmaker has a lot of strengths because people are much more comfortable with a filmmaker having a perspective than they do with established power, a corporation or government.
For makers, having a support network already in place, not only of experts in communication but of experts in the area of the film’s topic and organizations that are related to it, can be crucial. “The best tool you may have as an independent filmmaker attacked by a company is grassroots organizations,” said strategist and professor Caty Borum Chattoo, who was also a producer of Wal-Mart: The High Cost of Low Price and other documentaries. “Effective response to a crisis when you are a little guy is all about amassing public support. It’s less about textbook crisis communication, and more about how to understand where the grassroots and public support for your film’s cause is, and working within that community to balance the media narrative.”
Most of the time, we found, makers do not prepare a crisis communications strategy or have funds for a counter-campaign. This is also true for investigative journalistic organizations. For example, as recounted in Big Boys Gone Bananas!*, Dole not only sued over Bananas!*, a film about Dole’s use of dangerous workplace chemicals on banana plantations, but also conducted a public relations campaign to discredit the filmmakers, contacting many reporters and filmmakers and creating a website. Director Fredrik Gertten, based in Sweden, recalls that he spent a good part of every week for months talking with reporters, who often had not seen the film. The team created a website that offered transparency, including litigation documents, but Gertten says that Dole did succeed in casting a shadow on his and the film’s reputation, particularly in the U.S., where the film could not initially find a broadcaster.
Although the American Chemistry Council refused to offer an interview for Suzan Beraza’s film about the impacts of plastic, Bag It, it did react when the film came out. The Council created a website that capitalized on the name of the film and its fans, and attempted to represent the industry as pro-environment, spinning the issue and criticizing parts of the film. Beraza, who had no resources, chose to capitalize on the unwelcome attention by letting film audiences know about the ACC’s retaliation. She believes the publicity did not hurt the film in the end, and does not know if it helped, but it took time and resources away from other projects.
The natural gas industry immediately attempted to discredit Gasland, as Fox showed in follow-up films, The Sky Is Pink and Gasland 2. Industry interests paid Google so that the first result of a search for the filmmaker or Gasland would be an advertisement against the film. They funded a pro-natural gas film (Truthland) and website and argued to the Academy of Motion Picture Arts and Sciences that Gasland should not be eligible for an Academy Award. Natural gas industry buses appeared at screenings, filled with protesters. Fox’s answer has been to respond vigorously and often sharply and even satirically, to make other films, and to write an open letter to journalists in response to the Academy of Motion Pictures letter.[15] Fox believes the controversy has brought more attention to his film but believes it may have also cast a shadow on his reputation.
In response to Blackfish, a film about the problems with keeping killer whales in captivity, SeaWorld retaliated by contacting 50 film critics, accusing a government official who had worked with SeaWorld of ethical violations for “leaking” information to director Gabriela Cowperthwaite, advertising against Cowperthwaite’s name with an attack ad, and hosting an anti-film website. Cowperthwaite stands behind the facts as presented in the film and has defended her film in the media, including with a rebuttal of specific charges.[16] She believes that the campaign drew more attention to the film—certainly the film critics were effectively encouraged to watch a documentary they might otherwise not have watched, and found it accurate. The controversy may also have encouraged more SeaWorld whistleblowers; it profoundly affected Sea World’s stock prices and may have triggered the resignation of the company’s CEO in early 2015. She but was less sure about the effect on potential awards.[17]
When Michael Moore decided to make Sicko, a consortium of health insurance companies and drug manufacturers spent hundreds of thousands of dollars on what Moore called a “disinformation campaign”.[18] Although Moore publicly exposed the campaign and accused its leaders at the time, with his trademark humor and irony, he believes the campaign “was effective and did create the dent they were hoping for.”[19]
Wal-Mart paid a publicity firm $1 million to conduct a campaign against Wal-Mart: The High Cost of Low Price, and launched the campaign even before the film was out. Workers were filmed knowing they might be fired, which understandably made it harder to make the film. On the film’s release, Wal-Mart had an unprecedented two-day press conference at its corporate headquarters, gave reporters a 10-page press kit on purported errors, and launched a counter-film. Brave New Films, without added resources but expecting this campaign, both mobilized a response and enlisted pro-bono support.[20] Brave New Films leveraged the film’s embattled image, garnering grassroots support for showings in communities around the country. A case study by an association of public relations executives judged Wal-Mart’s actions to be detrimental to Wal-Mart’s public image, for its lack of transparency and failure to align with espoused company values. Brave New Films won visibility and the legitimacy of being seen as a credible threat.
When Violeta Ayala and Daniel Fallshaw made Stolen, revealing modern-day slavery inside a refugee camp in the western Sahara, they engendered the enmity not only of the group controlling the camp, the Polisario, but also the Algerian government, which stakes a claim in the western Sahara. They faced intimidation and harassment, and when U.S. public TV considered the film (and eventually aired it), a U.S. law firm representing Algerian interests sent letters to public TV organizations warning against it. The filmmakers had to hire a lawyer, but they eventually got their film on the air in the U.S. and Australia. It is possible, they say, that the campaign helped promote the film.
When corporate lobbying groups, like the US Chamber of Commerce criticized her film, Hot Coffee, about the dangers of so-called tort reform, with a YouTube campaign and web advertising, Susan Saladoff decided simply to ignore the criticisms, and believes that was the right strategy. Ultimately, she believes the attacks helped—“all publicity is good publicity.”
In some cases, filmmakers prepare for such attacks with oppositional research and talking points, even conducting sessions where one part of the research team is assigned to attack the project, and others must defend it. In some cases, programmers help filmmakers do this. More often, makers do not conduct such opposition research, particularly within journalistic organizations. They expect their own research to be sturdy enough to serve well if they need it.
Some outlets strongly support the project with communication materials. Both ITVS and POV produce elaborate press kits and communications strategies, including talking points and even personal contact with station managers in some cases. POV head Simon Kilmurry said that the POV team conducts a half-day meeting in which the staff models “worst-case scenarios,” to prepare a filmmaker for attacks and allow for practice in responding. POV may also get a filmmaker media training, and even do research on filmmakers’ backgrounds, in case an attacker may be able to exploit something in a maker’s past.
A good public relations strategy can help mitigate the negative effects of attacks. Firms driven by a social mandate, such as Spin Project, Spitfire Communications, Hager Sharp, M+R Communications, Fenton Communications, Rally (formerly Griffin Shein in L.A.), and Beekeeper Group may have goals or mission that match a maker’s project. Firms hired to do routine release publicity may or may not have the skillset or be able to accommodate a full-fledged smear campaign. Also a maker may have relationships with non-profits or NGOs that work with public relations firms already, and also may want to partner on hiring a company.
Pro-bono help in public relations may be hard to find. Larger firms occasionally provide pro-bono services to select clients, but they prefer non-controversial charity or nonprofit cases and long-term arrangements. For example, in 2006 Porter Novelli conducted a year-long pro-bono promotional campaign for Freedom From Hunger, a global charity organization fighting hunger and poverty. Smaller firms, especially those catering to small-account independent filmmakers, generally can’t afford to take pro-bono cases.
In many cases, independent filmmakers conduct their counter-campaigns on their own, learning by trial and error, without the benefit of expert advice.
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Insurance
Interviewees identified two major problems with insurance. The biggest problems makers have with insurance are the expectable obstacles built into the business model—that insurers either do not insure for or charge heavily for high risk. There are many insurance products, including errors and omissions, production, subpoena, and kidnap and rescue insurance, and the same problem applies to them all. Problems are particularly acute internationally. The second problem was underinsurance, either because they could not obtain it, or they did not know they should obtain it.
The good news about insurance is that, since this is not an arena in which statistics are particularly helpful to insurers due to the idiosyncrasies of each situation, insurers do not necessarily penalize filmmakers for previous trouble, if it was not triggered by their behavior. They look closely at the behavior of filmmakers and the nature of each film, and make judgments tailored to the situation. For instance, getting E&O insurance at reasonable rates has not been difficult either for Joe Berlinger or for Fredrik Gertten, although both had to activate their E&O for earlier films.
However, insurance problems related to risk can be a barrier to production, discourage it, or at least force caution. Typically filmmakers must acquire the insurance themselves; journalists are usually covered by their organizations, and contracted freelancers are often as well. Production insurance may be unavailable entirely to makers who are entering high risk zones, or in some international areas. Filmmaker Katy Chevigny, whose E-Team follows representatives of Human Rights Watch as they go to the front lines of claimed human rights abuse, finds it to be almost impossible to get production insurance. “It has become impossible for the small independent production company to purchase production insurance for film crews in war zones and the like. You simply cannot get coverage unless you are part of a very large entity that has a blanket policy (like a large news media organization or a large NGO). This puts indie makers at significantly higher risk with no safety net, unless they are partnering with big media outlets.”
Asked to identify its makers’ problems with E&O, ITVS staffers could only find one example, but it was illustrative of the problem for makers who take on expectable but high risk:
Several E&O insurers refused to provide coverage or refused to provide coverage without exclusions responding to a litigious character in the film (who had already sued characters in the film). The filmmakers worked with a broker and legal team for nine months in a process to secure their E&O policy. One insurer offered to sit with the filmmakers and go through the film to suggest edits, which made the filmmakers, their legal team and ITVS uneasy. Ultimately, as the film was being completed for
its festival premiere, the filmmaker and legal team suggested minor, reasonable changes to the program that did not alter the structure, but did impact an aspect of their storytelling. The filmmakers returned to the edit room to make the changes without knowing if it would suit the insurer’s requirements. Ultimately, this resulted in a reasonably-priced, exclusion-free E&O Policy but with a $25,000 deductible per event (ITVS typically requires filmmakers to secure policies with $10,000 deductibles per event).
As well, usually makers who got their own insurance found it challenging to get errors and omissions insurance as early as would be ideal. Contracting for insurance early protects filmmakers from problems while still in production, but it is usually difficult to get that insurance without having substantial amounts of completed work to show an insurer, who needs to make a case-by-case call.
Interviewees also found that they or colleagues were not sufficiently covered by insurance when they expected they would be. For instance, in some cases people were covered for the legal costs of a subpoena challenge, but not for documentation and preparation costs. In some cases, interviewees cautioned that freelancers or contract workers might not be covered under an organization’s insurance unless they asked to be.
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Legal Issues
Interviewees told us much more about fear and concern than about actual problems. Investigative journalists are more familiar both with threats and actual lawsuits, and also more protected by journalistic organizations.
ProPublica, to take one example of investigative reporting institutions, has been sued for defamation three times, one still in process. In the first case, the court dismissed the plaintiff’s claim, and in the second, the plaintiff withdrew the claim.[21] ProPublica has in-house counsel, and prepares for these possibilities with meticulous research and well-kept records, as well as pre-publication legal review in almost all cases.
Filmmakers by contrast were typically not informed about either the range of legal information available to them, which can help them prevent trouble, or the range of laws protecting journalists in different states in the U.S. Both shield laws and anti-SLAPP (Strategic Lawsuit Against Public Participation) laws exist in many U.S. states, but they differ from state to state. Internationally the problem of lack of knowledge about the law is larger still. Rather, wesaw among filmmakers a general alarm over recent lawsuits and the federal government’s harsh line on whistleblowers as harbingers of more legal trouble for makers of investigative work, and a wish to find a safe haven in some kind of legal defense fund. Filmmakers also told us about colleagues who had not undertaken work, for fear of litigation.
Occasionally, filmmakers receive a cease-and-desist letter or subpoena, or a lawsuit is threatened or filed. We found that these problems were rare, but are highly publicized. But even the threat of litigation can freeze a distribution deal. “Every filmmaker is competing with many other very competent filmmakers for a limited number of high profile broadcast slots and distribution opportunities,” ITVS staffers noted. “If an equally good film does not have legal risk associated with its distribution (or, has sorted out its legal risks prior to broadcast), that film may have an advantage over a film with unresolved legal issues. Even slight disruptions and unresolved issues can have a big impact on distribution.”
Recent cases we found were varied and idiosyncratic:
In two cases—Crude and The Central Park Five—makers whose subjects were in the midst of an ongoing legal case found themselves subject to subpoenas. Joe Berlinger was forced eventually to provide some material from his film Crude, in part because he was not found to be operating as an independent journalist. Benefiting from this knowledge and operating in New York state, which has a shield law for journalists, Florentine Films, maker of The Central Park Five, successfully resisted the subpoena from the City of New York for notes affecting the suit of its subjects against the city.
In one case, Bananas!*, Dole sued the filmmakers for defamation, and threatened others, such as board members of a film festival that had accepted the film, with similar litigation. Dole withdrew its charges eventually, in part reacting to a Swedish boycott of Dole products; indeed, it was not clear that the lawsuit was in good faith. It may have been launched with the goal of delaying the film’s release to avoid affecting another Dole lawsuit.
In the case of Venus and Serena, the U.S. Tennis Association charged the makers with copyright infringement, a charge that was voluntaril dismissed with prejudice against the plaintiffs (meaning they could not file again). Other fair use cases were similarly summarily settled, includingone in which Yoko Ono asked for an injunction against the film Expelled!
Filmmakers and journalists usually did not depend on pro-bono lawyering to defend them, although they may have availed themselves of pro-bono services before that point. Once filmmakers found themselves in crisis, they hired lawyers, usually from law firms approved by their E&O insurance. Journalists often depended on their organization’s counsel’s decisions on how to handle the situation.
In general, little free legal support is publicly available, appropriate and timely for independent makers for a lawsuit, although pro-bono services exist for other support. Makers have sometimes been able to cobble together pro-bono support services from interested law firms. Doing so depends to some extent on personal relationships and the maker’s reputation. As well some legal clinics offer free services for copyright permissions, and the Reporters Committee for Freedom of the Press has a legal hotline for questions as well as web-based and topical advice and information. SPJ has a tiny legal defense fund, which caps out at $5,000 per user. The Reporters Committee for Freedom of the Press, the ACLU, EFF and IDA have also participated with amicus (friend of the court) briefs in litigation. Occasionally organizations take on legal defense, typically within boundaries that match the organization’s focus.
While interviewees did not tell us any stories about legal problems internationally, one did caution that anyone working internationally or in a co-production can face international charges; for instance, Britain has libel laws that are much more plaintiff-friendly than in the U.S. Currently, errors and omissions insurance issued in the U.S. is typically issued world-wide.
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Partners
The biggest problems, makers agreed, came at the beginning and end of the work-problems such as funding and distribution. Those problems are related indirectly to the threat of blowback.
Producers of works that challenge the powerful are, by definition, bucking the system. At the outset, it is hard to find funders who want to, or can afford to support work that challenges the status quo or today’s powerful. Foundation funders often shy away from something that board members can label controversial, advocacy or propaganda, even if it is accurate, verified and responsible. Board members may also have ties to the powerful. Broadcasters and cablecasters, who fund some productions, have concerns about such work that range from advertisers to ratings to members to political consequences to personal ties. In short, the network of relationships that produces and funds media is closely intertwined with other networks of power.
Given these realities, private funders that have distinguished themselves by funding courageous and sometimes confrontational work, such as the John D. and Catherine T. MacArthur Foundation, the Ford Foundation, Chicken & Egg Pictures, BRITDOCS, Sundance Documentary Fund, and others, including many family and community foundations, sometimes find themselves besieged by requests that far exceed their capacity to fund, given the expectable conflicts and lack of interest in funding media elsewhere. The publicly-funded production entity Independent Television Service, which is focused on diverse, innovative programming, must reject 98% of applicants.
At distribution, makers told us, the same concerns reappear. Broadcasters often are not interested in work that challenges the powerful and entrenched; for many, it is simply not part of the business plan. Many broadcasters handle documentaries through entertainment divisions, so the window of opportunity is not big. Public television local stations sometimes balk at showing challenging work even when it has been thoroughly vetted by PBS and producers. Also, those outlets that will consider such work either for funding or acquisition, makers said, often want to change work to appear more eventempered or even-handed, even if the work makes responsible, accurate and verified charges.
This makes the choices to carry such work, as happens on some public television strands such as POV, Independent Lens and FRONTLINE, on commercial cable channels such as HBO, CNN, ESPN and Al-Jazeera, and to showcase it, as sometimes happens on PBS’s NewsHour, and at the New York Times through its Op-Doc series, all the more impressive and that real estate all the more precious.
Makers of long-form non-fiction storytelling on social issues strongly believe there is a problem with both programmers and distributors, as well as with co-producers at times, who have a resistance to hard-hitting material. This is impossible to substantiate since distributors do not discuss why they did not carry something, and it is also subject to interpretation. We present here some comments by producers. They also of course have arguments only with those relatively rare entities willing to consider taking on risky films, and which do carry other risky films. One producer b