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The Death of Objectivity? When Documentary Footage Becomes Evidence

By Belinda Baldwin

Lisa Bejarno, subject of Roger Weisberg and Vanessa Roth's 2004 documentary 'Aging Out'.

Speaking at the Commonwealth Club of California earlier this year, Albert Maysles made a comment that many in the audience may not have heard. He said, "You make a film of social significance, and the repercussions go on and on." Many probably missed that moment because it was one of those half-muttered gems that can get lost inside of a live conversation, but becomes profound when watching it again on video. 

At the time, Maysles was speaking about the controversy that was to become Gimme Shelter, his and brother David's elegy to the 1960s. Much like the decade that birthed it, the film started out as an exercise in direct cinema, the observational method cultivated, if not authored, by the Maysles and the Drew Associates team with Primary, a made-for-television short about the 1960 Wisconsin primary election between US Presidential candidates John F. Kennedy and Hubert H. Humphrey, and Salesmen, a feature documentary "about four door-to-door Bible salesmen who move horizontally through the capitalistic dream," as The New York Times' film critic Vincent Canby described it at the time.

Where Primary and Salesmen moved audiences by illuminating the small but telling moments of daily life–whether we are future world leaders or capitalism's foot soldiers–Gimme Shelter held the gun that was the 1970s to our heads and cocked it while the Rolling Stones sang, "It's just a shot away." The film that had started as a "fly-on-the-wall" portrait of the rock and roll generation turned into an eye-witness account of the end of an era the moment the Hells Angels stabbed a man to death in front of the concert stage. The Maysles ultimately chose to fold the footage of the police watching the alleged murder on film into the film itself, but the ideological foundation for direct, observational cinema was forever cracked the day that footage was used as evidence in the murder trial against the Hells Angels.

Up through the cracks floated question after question about filmmaking and the pursuit of truth. Is documentary a form of truth, objectivity or journalism? Should documentary footage be used in a court of law? Are documentarians connected to the reality they are filming or outside of it? Does the very act of filming reality change it? What protections should we afford documentary filmmakers in a free society?

Such questions have a heightened relevancy in light of several current documentaries, including No Tomorrow, a film by Roger Weisberg and Vanessa Roth that focuses on the murder  of a central character in their 2004 film Aging Out, about the challenges teenagers face when leaving the foster care system. No Tomorrow explores how Aging Out surprisingly became the emotional centerpiece in the trial and death sentence of the defendant. 

"At first we were happy that our film could speak for Risa and give her a voice in the trial," say Weisberg and Roth. "But we became increasingly ambivalent because we knew that the prosecutor intended to use our film to persuade the jury to impose the death penalty by maximizing sympathy for the victim and hatred for the perpetrator...As filmmakers who knew and loved Risa Bejarano, we wanted her murderer to be severely punished, but we have always been morally opposed to the death penalty."

The use of their film in this way put the filmmakers in a morally precarious position, revealing a new twist on an age-old dilemma about how much control a filmmaker ultimately has over the interpretation and use of his or her work. "Ironically, we created Aging Out to illustrate how difficult it is for teenagers to overcome the scars of abuse and neglect," they explain. "Now we were confronted with the prospect that our film helped convince a jury to give the death penalty to a young man who had suffered the same traumatic childhood experiences as Risa Bejarano."

Roman Polanski: Wanted and Desired, the 2008 documentary by Marina Zenovich, also became entangled in the legal system it wanted to investigate. Initially, Zenovich's film about Polanski's conviction of a sex crime three decades ago traveled relatively unnoticed outside the documentary community until it set off a legal battle between Polanski's attorneys and the retired prosecutor, who had stated in the film that he coached the judge in the original case. After the Swiss police detained Polanski in September 2009, the retired prosecutor recanted his film statement, saying he thought his lie would make a better story for the filmmaker: "The director of the documentary told me it would never air in the States," he admitted to The Daily Beast's Marcia Clark (herself a former LA-based prosecutor). "I thought it made a better story if I said I'd told the judge what to do." Zenovich flatly denied misleading anyone for the film but nonetheless found herself in the strange, new position of key witness in the ongoing investigation.

Another example is Bananas!, Swedish filmmaker Fredrik Gertten's documentary about a class action lawsuit filed by Juan J. Dominguez, a Los Angeles personal injury attorney, on behalf of a group of Nicaraguan laborers who allege to have been made sterile by a pesticide used at Dole banana plantations during the 1970s. The film's opening scene of a plantation worker's funeral sets the tone for a David-and-Goliath story. The story that follows centers around Dominguez's case against Dole for its alleged malicious use of dibromochloropropane, or DBCP, in Nicaragua years after it had been banned in the United States.

Although Bananas! ends with footage of the attorney delivering a guilty verdict to a group of Nicaraguan laborers, that verdict is still under appeal today. In April 2009, the presiding judge dismissed Dominguez's cases after hearing evidence from Dole that he may have solicited false testimony from witnesses. This revelation challenged the credibility of the film. "Because of this new development," Gertten says, "we decided to make a change with updated title cards at the film's end, reflecting Judge Chaney's rulings."

However, Dole's attorneys had what they felt were grounds to prevent the film from screening and sent a threatening letter to WG Film, ITVS and all of the sponsors of the Los Angeles Film Festival, alleging the film contained "numerous false and defamatory statements." WG Film's attorney returned the volley with a statement about journalism, stating, "The film is a balanced documentary of a trial based on actual events. Most of the factual information contained in the film is stated by its subjects, not by the filmmaker, who is essentially acting as a reporter." After the festival screening of the film, Dole responded with a defamation lawsuit against Gertten.

Dole eventually dropped the defamation suit–perhaps out of fear of losing the PR battle,  if nothing else–but the tremendous cost in time and attorneys fees to Gertten sends a sharp message to other filmmakers tackling topics involving multi-billion-dollar corporations. Gertten has since moved to have Dole cover the costs of his legal fees, but it is unclear if this will happen or how long it will take to recover those costs if it does. According to Gertten's attorney,"The law is clear that Dole cannot file its action, compel defendants to incur significant expense in having to file an anti-SLAPP [Strategic Lawsuit Against Public Participation] motion to have the case thrown out, and then just slink away with a voluntary dismissal while the motion is pending and not pay for its actions." But in fact, the law is not clear.

(Editor's Note: On November 29, 2010, a Los Angeles Superior Court granted an anti-SLAPP motion, and struck the defamation complaint filed by Dole. In granting the motion, the Court maintained that Dole's lawsuit was "what is commonly known as a SLAPP" that lacked "minimal merit." Indeed, the Court found that a "careful review of the film does not support Dole's assertions" in the complaint. The Court rejected Dole's contention that the "overall tone" and purported implications made in the film were defamatory, holding that the film accurately and fairly portrayed the events surrounding a trial that took place in Los Angeles in which Nicaraguan banana workers sued Dow Chemical and Dole for its use of a pesticide that causes sterility. In addition to striking the lawsuit with prejudice, the Court ordered Dole to pay attorneys fees and costs in the amount of $199,959.25.)

Joe Berlinger understands this lack of clarity more than most. Describing the impetus for Crude, his film about a multi-billion-dollar lawsuit against Chevron for the pollution of the Amazon rainforest in Ecuador, he notes, "In making this film, I felt it was important not just to show the situation and try to point fingers at a culprit, but to pull back and tell this massive–and massively complicated–story from a wider and more nuanced viewpoint: What are the roles of corporate power, government, the media and big money in a case with the long history and potentially enormous consequences as this one?"

Arguably, Crude has succeeded in showing the massively complicated role of power, media and government by getting entangled in it. After the film's release, Chevron petitioned the court to have Berlinger release all 600 hours of outtake footage, arguing that it may reveal corruption and misconduct by the plaintiffs. After Berlinger lost his objection to the judge's orders, documentary filmmakers and journalists alike reacted in outrage. "I was at my darkest hour," Berlinger recalls, "questioning whether I had the financial and emotional resources to fight, when I got a call from Patrick Creadon [Dir.: I.O.U.S.A.]" Other filmmakers, the IDA, WGA, DGA, Academy of Motion Pictures Arts & Sciences provided additional support, filing an amicus brief on Berlinger's behalf–which, in turn, helped to get the attention of leading First Amendment attorney Floyd Abrams, who filed a separate amicus brief, the signatories of which included several media companies such as the Associated Press, the Dow Jones Company, the Gannett Company and The New York Times Company, among others.

In a May letter issued in support of Berlinger by the International Documentary Association, filmmakers as diverse as DA Pennebaker, Ken Burns and Michael Moore argued that the judge's orders could set a terrible precedent: "If witnesses sense that their entire interviews will be scrutinized by attorneys and examined in courtrooms they will undoubtedly speak less freely."

The letter goes on: "In cases such as these involving access to a journalist's work material, whether they involve a newspaper or online reporter, a radio interviewer, a television news producer or a documentary filmmaker, it is understood that First Amendment protection of the journalist's privilege is never absolute." However, the letter continues, "We are nonetheless dismayed by Chevron's attempts to go on a ‘fishing expedition' into the edit rooms and production offices of a fellow documentary filmmaker without any particular cause or agenda."

The Manhattan Second Court of Appeals ruling in July stated that Berlinger had to turn over some, but not all, of the footage, and that Chevron could only use the footage for "litigation, arbitration or submission to official bodies"–not for publicity or promotion. Berlinger considers this a "limited victory" for his case, but a significant victory overall because it protects the  precedent–Gonzales vs. NBC; 1999–which argued that only when evidence has been proven to be relevant and unattainable by any other source should journalist privilege be overturned. Had Berlinger lost his appeal, this precedent, crucial as it is to a free and functioning press, would have been obliterated.

The Court of Appeals also overturned the previous order's refusal to protect Berlinger's footage. With Berlinger's appeal now upheld, his footage is legally protected from non-copyrighted use outside of a court of law. In the age of YouTube and Google, this is also a significant, if limited, victory. According to Berlinger, as emotionally, physically and financially exhausting as this case was, "The point of the fight was that you can't just ask a filmmaker to dump footage on the desk of an interested party just because they said they want it."

Like No Tomorrow, Roman Polanski: Wanted and Desired or Bananas!, the legal case around Crude ultimately points to the price of documentary's increasing social relevancy. If we ever believed that a filmmaker could live objectively outside of the story, then surely that ideal is gone today, even if it is still worth striving for. This price will only increase as documentary's popularity and influence with the public grows. Maybe instead of direct cinema, a better term for it is indirect cinema since, as Albert Maysles so astutely pointed out in the twilight of his career, the repercussions continue to go on and on.

Belinda Baldwin is a Dallas-based development director for a diversifgied media group including television, Web and mobile. She holds a PhD from USC in Cinema-TV.