Documentary filmmakers can spend hundreds, if not thousands, of hours with their subjects—often leaving the camera running the whole time. Debates about how filmmakers should best navigate relationships with their sources—close enough for mutual trust, but not so close as to lose editorial control, etc., etc.—are well worn. But what’s not discussed nearly as often is the relationship between the filmmaker and all of those hours and hours of footage that don’t make it into the final cut.
What happens to all those outtakes, and to whom do they belong? What if someone wants to use them as evidence in a court case? “Reporter’s privilege,” a First-Amendment protection that journalists often claim for their notes and confidential sources, is recognized by some, but not all jurisdictions in the US. The Obama Administration has been criticized for its overly zealous pursuit of confidential sources. But more broadly, should reporters’ privilege apply to the unaired footage from a documentary film? What if the film has a message, as almost all documentaries do—does that mean it’s not a work of journalism? The complicated answer to every one of those simple questions is: It depends.
Recent rulings on these issues have been inconsistent and complex, to say the least. No federal shield law exists (not yet, anyway). “Each state and every federal circuit can have its own body of law, because there is no statute that governs this,” says Gregg Leslie, legal defense director at the Reporters Committee for Freedom of the Press. “So in some jurisdictions, it’ll be a very narrow privilege, and in other jurisdictions, it’ll be a very broad privilege.”
It’s a journalist’s job to protect his or her sources—which is why reporters’ advocates are so disturbed by the thought of denying reporter’s privilege just because the reporters in question happen to be making films.
In 2010, a federal judge in New York ruled that documentary filmmaker Joe Berlinger had to turn over his unaired footage from his film about a class action lawsuit in Ecuador against Chevron, Crude, for Chevron to use as evidence in its defense. Berlinger’s lawyers had argued that doing so would violate confidentiality agreements he had made with his sources. But Judge Lewis A. Kaplan disagreed that anyone’s confidentiality was at stake. Another factor working against Berlinger’s claim was the fact that, before showing the film at Sundance, he had taken an editing suggestion from one of the attorneys representing his film’s main subjects, making his case a cautionary tale about maintaining editorial control and distance from one’s sources. The judge ultimately ruled that Berlinger had to hand over more than 600 hours of film, a massive amount of material that his attorney told The New York Times amounted to a “fishing expedition.”
“When a news source speaks to a reporter, it’s very different from giving testimony in court,” says Gene Policinski of the Newseum Institute’s First Amendment Center. “I think you’re going to chill the newsgathering process if everyone assumes [an interview] is just a pre-deposition document. You’re also saying that the journalist’s work product, from the moment the work begins to publication, somehow isn’t the property of the journalist, but depends on the perspective of the person being interviewed.”
Without the protection against subpoenas that reporter’s privilege provides, Policinski says, a journalist’s work is reduced to nothing more than a public document to be used as a tool for the police or plaintiffs in civil cases—and the journalist is reduced to nothing more than “a stenographer.”
Other arguments concerning reporter’s privilege hinge on the relative (perceived) independence of the filmmakers. The unaired footage from another documentary, Central Park Five, was also subpoenaed, last year. The footage was to be used by New York City in its defense against a civil suit filed by the five main subjects of the film. Lawyers for the City cited the Chevron case, and also argued that reporter’s privilege should not apply because the filmmakers were not impartial journalists—rather, they were biased advocates for their subjects. The filmmakers fought that claim.
“Having a perspective does not make you not a journalist,” said Sarah Burns, one of the filmmakers, in a presentation to the International Documentary Association about her case. “So much of journalism—a hugely important part of journalism—is that ability to make a point, to say that something is wrong, and in that sense to advocate for a certain perspective.” Judge Ronald Ellis ultimately agreed with Burns and her colleagues, and ruled that the filmmakers did not have to comply with the subpoena. A federal district judge upheld the ruling just last month.