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Mon 9.9.2019

How Documentarians Protect Their Projects… and Themselves

EDITOR’S NOTE: The following article originally ran in May of this year. Ben Berman’s film Untitled Amazing Jonathan Documentary, discussed below, is now streaming on Hulu.


Sure, there are plenty of things that narrative filmmakers need to worry about. Things like drunken actors, waning daylight or the sudden loss of key location. But when compared to the sorts of ethical, legal and existential questions vexing and bedeviling nonfiction filmmakers—uncooperative film subjects, reluctant interviewees, niggling lawsuits, the occasional accusation of exploitation—simply trying to get your leading man sober enough to deliver one or two lines upright without looking into the camera starts to look like a walk in the park.

There are a lot of ways that a documentary project can end up biting you in the ass. And the best way to safeguard your film’s potential success—as well as your own personal well-being—is by thinking ahead, particularly with regard to legal matters such as releases, materials licensing and securing your subject’s consent. Forethought may not eliminate every issue, but it helps.

Such was the subject of the Film Independent Forum panel “Documentaries: Safety, Sanity and Security”—taking place April 27 at the new LMU Playa Vista campus.

Moderated by attorney Lisa Callif (partner, Donaldson & Callif), the panel included filmmakers Ben Berman (director, Untitled Amazing Jonathan Documentary), Skye Borgman (director, Abducted in Plain Sight), Melissa Haizlip (director/producer, Mr. Soul!) and Robert McFalls (editor, The Advocates—watch our 2018 interview with director Remi Kessler here.)



Just dive right in. Here’s the thing: yes, as a documentarian it’s good to make sure you’re protecting yourself as much as possible as early as possible. But don’t let getting organized or doing everything “the right way” stop you from starting production. You can always figure things out as you go along. “I started not doing the appropriate thing—no releases, no anything,” said Berman. Said Callif: “Some people get really caught up either in financing or lawyering and then the project doesn’t happen… There’s a balance, at some point you might need legal services and releases and things like that in place, but you gotta just go do it.”

To pay or not to pay? Callif asked the filmmakers if they thought it was ethical to compensate their subjects any interviewees with monetary pay. While it was generally agreed that doing so would be “bad journalism,” that itself prompted editor McFalls to open an even bigger can of worms: “The question is: are documentaries journalism at this point? They probably used to be more than they are now, the style has changes so significantly over the past 10 or 20 years.”

But c’mon, should I pay my subjects or what? Callif said that some payment to onscreen documentary participants is fair, though there isn’t yet an industry standard as to what this rate should be. Borgman—who has paid her subjects—said that she has never felt as though compensation has impacted what her interviewees have said to say. Others, like Haizlip, have circumvented rules (imposed by some distributors) against participant compensation by paying her subjects licensing fees for archival materials such as photographs or music.

Developing good relationships. “You all seem to have good relationships with your subjects, which is good,” Callif said. “A lot of people have problems when they don’t trust their subjects or their subjects don’t trust them.” Berman admitted that his relationship with his film’s subject—troubled magician and comedian “The Amazing Jonathan”—remains touch-and-go, based on Jonathan’s apprehension about being portrayed in a negative light, and then (after the film’s Sundance acquisition) his unrealistic expectations of a financial windfall.

L-R: Lisa Callif, Skye Borgman, Ben Berman, Robert McFalls and Melissa Haizlip (photo: Araya Diaz, Getty Images)

Not all contracts are written. Despite how official they might seem to a layperson, written contracts aren’t necessarily the final word in defining the terms of your subjects’ participation. This can cut both ways. Said Callif: “The problem we often see with out clients is [that the subjects] sign this release, but they say ‘I’m only signing this because you agree that I can see the film is released, and that I can take out anything I want’”—which, if you agree to (even verbally and informally) as the filmmaker you may be held to. Conversely, you can also capture your subjects’ consent to be recorded verbally on camera; having a visual record of consent can be just as valuable as a signed release.

Pick your battles. Borgman related an incident involving her latest film, the hit true crime doc Abducted in Plain Sight. An extended family member of the film’s subject contacted her, complaining their father’s incidental appearance in a photograph used prominently in the film, and requesting to be removed. Even though the man in question was being represented accurately—and Borgman (according to Callif) was under no legal obligation to fulfill the request—she still did, calculating that the long-term headaches of a potential lawsuit, even if doomed, outweighed the short-term headache of blurring the man’s face.

Frame things advantageously. When it came time for distribution, Haizlip found herself in a bit of an awkward spot. In her film, Mr. Soul! (about Ellis Haizlip, Melissa’s late uncle and a pioneering and host of the landmark public television show SOUL!), the Corporation for Public Broadcasting was framed somewhat as a villain, due to historical fact of SOUL!’s cancellation. Not exactly the best spot to be in as a filmmaker seeking a PBS broadcast. But Haizlip recognized that the film’s release coincided with an upcoming CPB anniversary, and was able to frame the project as a celebration of CPB history.

Not one said it would be easy. “You pick characters because they’re characters,” said McFalls, who recounted yet another difficult interaction with one of his films’ subjects. Regardless of your documentary’s topic, creating a compelling films’ necessitates a degree of drama, not always only or exclusively onscreen. But if you prepare well and remain aware of the shifting dynamics of production, you’ll be in a good position to stay sane, safe and secure.

The 2019 Film Independent Forum took place April 26-28, 2019 at the new LMU Playa Vista campus in the heart of Silicon Beach—click here to see what else happened, and don’t forget to come back next year!

The 2019 Film Independent Forum was supported by Premier Sponsors SAGindie, Cast & Crew and University Partner Loyola Marymount University School of Film and Television.

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(Header: Untitled Amazing Jonathan Documentary)

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