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.
Just a few days prior to that last ruling, though, a judge in a different jurisdiction ordered filmmakers from the BBC to hand over their unaired footage from a 10-year-old documentary about Yasser Arafat. The family of a woman who was killed in Israel is suing the Palestinian Authority and Palestine Liberation Organization under the Anti-Terrorism Act, and they say the footage from the 2003 film can help them link their daughter’s killers to these organizations. Lawyers for the BBC argued that the footage the plaintiffs sought was not at the heart of their case, nor was it entirely crucial to it—two factors that typically weigh heavily on deliberations about whether subpoenas of this type would be upheld or thrown out.
“If you’ve got the only interview with a murder suspect, the court is probably going to say that that can’t be obtained any other way,” says Leslie, by way of example. “But if it was something that you videotaped while police officers were sitting there, then they, as witnesses, would be a better source of the evidence, so the court in that case would say that it didn’t have to go to the journalist [for the information].”
In the BBC case,, Judge Paul L. Friedman wrote in his opinion that the demands of reporter’s privilege had not been met. Leslie notes that this case was argued in a district not particularly known for its recognition of reporter’s privilege in general. (The BBC wrote, in an emailed statement about the case, that it “has filed a motion for reconsideration and, in the alternative, has applied to the court to certify its ruling for immediate appeal.”)
In both the BBC case and the Chevron case, the judges ruled that the confidentiality of the films’ subjects were not at issue, thus raising the bar for the filmmakers to claim reporter’s privilege. The confidentiality piece of the privilege is a difficult one to prove when it comes to film, of course. If subjects willingly appear on camera and have no say over what gets included in the final broadcast, it is hard to show that those subjects expected to be protected.
Just as every journalist has to protect her sources, she also has to protect herself. For instance, to try to get a subject comfortable with speaking on film, a filmmaker might want to say something like “say anything you want, and we’ll edit it later if you change your mind.” But that gets into dangerous territory, says Gregg Leslie. (See the Chevron film example above as case in point.) While filmmakers should allow input from their sources, Leslie says, they have to establish and maintain editorial control—and ideally, to do it in writing.
“It’s often an uncomfortable conversation to have with a source at the start of a project, because it can make it look like there’s a lot of legalistic reasoning going on behind the scenes,” says Leslie, “but it really is kind of essential to make sure that things go well in the end.”
Documentary filmmakers can’t control whether or when or how or where their footage may be subpoenaed, of course, but they can take steps toward strengthening any future claims they may have to make of reporter’s privilege. Leslie says that accepting money from a source, or allowing a source to pay for production is a pretty quick way to lose your reporter’s privilege in the eyes of a court, says Leslie. So is inviting editing input from a source—or even appearing to do so—which is why he encourages filmmakers to get as much in this area in writing as possible.
Editorial and journalistic independence doesn’t mean the end of advocacy, however. Filmmakers can still have a viewpoint, says Policinski; they just have to stay in charge of their projects and stay ethical.
“We’re not required by the First Amendment to be opinionless, vapid souls,” Policinski says. “We can defend the helpless, or stand up for the abused, and we may share a great deal of the views and values of the subjects on which the documentary is based. But it comes down to the really pragmatic aspect of who makes the final decision about the content.”Lauren Kirchner is a freelance writer covering digital security for CJR. Find her on Twitter at @lkirchner