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Risky Business: A New Report on the Dangers of Doc-Making

By Nayantara Roy

From Joe Berlinger's 2009 film 'Crude'. Photo: David Gilbert

There has never been a more dangerous time for documentary filmmakers. Many work independently without organizational backing and are literally on the frontlines, taking on challenging situations, often without the protections that journalists doing similar work have in place. Taking on financial, physical, legal and technological risks, the documentary filmmaker often fights the lone battle, whether in a war zone, or against government, powerful corporations or individuals.

In a report released this past winter by the Center for Media and Social Impact, titled Dangerous Documentaries: Reducing Risk When Telling Truth to Power, principal investigator Patricia Aufderheide outlines the risks documentarians take, the existing resources to mitigate them and the attitudes and practices of the field. "We wanted to see the problems emerging, not for one person, but for a field," she explains. "When somebody the stature of Joe Berlinger or Alex Gibney faces a legal challenge, everybody perks up. But what happens when Walmart comes after Brave New Films? We wanted to know more about what filmmakers were experiencing when taking on powerful people and the ways in which they were protecting themselves. The appendix to the report has a wide variety of resources that emerged as a result."

The report asks the question of the moment—documentary filmmaker or journalist?—and finds truth to be the central focus of both. Having conducted 53 interviews with filmmakers, funders, lawyers and insurers, Aufderheide zeroes in on the similarities between documentary and journalism: "The single most interesting thing about this report was how much people who think they are filmmakers and people who think they are journalists have to learn from each other by accepting that they play both roles. Both have so much expertise to share."

The report suggests from case studies that independent filmmakers are at greater risk at times than journalists, given the nature of their work. A documentarian may be exposed to risk for prolonged periods of time, often spending years in vulnerable situations, but without the protections and privileges afforded to journalists backed by news organizations. Filmmaker Brian Knappenberger points to the contradiction: "The great thing about documentary film is that it is often independent of the news corporation. But the flip side is the independence. You don't have the backing, insurance or legal protection critical for documentarians to be able to do their work."

Filmmaker Gordon Quinn notes, "What's interesting about this report is the idea of someone like Pat, coming from the academic world, and looking at our field, identifying the problem and getting us to really address these issues. We all engage in these problems and sometimes share stories, but there's no formal, big-picture way of looking at the whole question." Quinn points out the concerns and ethics that an emerging maker might need training in and awareness of. "We've talked for years that we do not get the same protections that investigative journalists get despite incurring the same kind of concerns," he says. "What happens if someone says that they have a subpoena and confiscates the footage that we have? Where is your footage backed up? What happens if your subject reveals something that may be great for the story but harmful to him?"

The report stresses the cultural separations that seemingly divide the documentarian and journalist. "We found that journalists often feel that filmmakers, being so well-versed in aesthetic expression, spin a story around the basis of fact," Aufderheide observes. "I don't find that to be true at all, or that journalistic integrity is not important to the documentarian. All of the filmmakers I spoke with emphasized fact-checking as a major part of their process. In fact, I think journalists could use a greater understanding of art in their telling of facts, since they tell stories too." Aufderheide points to the responsibilities of film and journalism schools: "There is too much training in documentary programs on the artistic, mystifying side of filmmaking and too much training in journalism towards phrasing and representation that reduces the risk of liability, without looking at the bigger picture of storytelling."

From the 2012 documentary 'The Central Park Five'. Courtesy of NY DAILY NEWS via Getty Images

Filmmaker Katy Chevigny reflects, "Typically we are in a situation of being neither fish or fowl—not protected under the rubric of press and not being considered strictly as an artist, since we are beholden to the facts. But documentary filmmakers are often journalists working in a visual medium, and that is essentially how they approach their craft."

But as the report makes clear, there is also the issue of documentarians looking in from the outside on journalistic rights, and enjoying the creative licenses associated with filmmaking. In no way, says Chevigny, does this interfere with journalistic integrity. "We don't always start out strictly journalistic. We are passionate about something and in the process of working on it, we realize how relevant it is. That is when we hold ourselves to these higher standards and take on the burden of journalists as well, when perhaps we might have preferred to have more artistic freedoms."

Adds Quinn, "One of the distinctions I find is that the ethics of a documentarian are different from the ethics of a journalist. We put more emphasis on some things than a journalist might because of the nature of the story we are telling. And we are very concerned with consequences for a subject, and their consent, privacy and confidentiality—especially if they come from a different culture. They need to know what we are putting online. We may try to convince them about a particular line or scene, but at the end of the day, if we can't convince them, we take it out, and we have done so in the past.

"In Prisoner of the Past, our subject made it clear that there were certain things that needed to stay with the family and we put that in the film, so that the audience would know where we hit a brick wall and what it looked like," he continues. "You owe your audience transparency—not just with what you are showing, but about the part of the story that you don't have access to." Knappenberger echoes the heart of the report's recommendation: "Most of all, we are emphatically rigorous with fact-checking. You have to be assured of the accuracy of the things you say and transparent about how you came to that conclusion."

A key concern highlighted by the report is the lack of training in documentary filmmakers, for both the risk and the technology demanded by their craft. "Filmmakers need the high-risk training that reporters get," Aufderheide maintains. "People don't have that training, nor the budget for that. We are trying through this report to get people to say that they recognize that this is valuable training, something that can minimize danger and a way of increasing viability of insurance. There is a lot of short-term thinking in filmmaking." In the many recommendations of the report, Aufderheide urges funders, organizations and university programs to take steps towards better practices for people to make more films that speak truth to power. "They should not be intimidated or afraid of doing this work," she says. "Propelled by urgency, makers feel the need to get up there and shoot their film. The creation of this report was to create a resource for the ways in which filmmakers can securely tell their stories."

Chevigny points out the opaque insurance landscape for documentarians, where insurers must watch films and decide on a case-by-case basis for high-risk production insurance and the extremely high deductibles associated with it. "The other thing we do is identify real holes, real problems where there are gaps," notes Aufderheide. "The insurance business works very well and sometimes will take on some real risk. But you can't call the insurance company and ask them to take on something that they see as a bad business proposition. What you can do is be aware going in if a government company or a corporation is going to be retaliatory. If you know you may not be assured insurance, look to cultivate a relationship with a funder who may support a high-risk fund or a high deductible for the dangers you might be vulnerable to as a filmmaker."

From Laura Poitras' 'CitizenFour'. Courtesy of RADIUS-TWC

Quinn adds, "We have E&O and liability insurance and we do what we can, but certain kinds of things cannot be insured against. I've had situations that are dangerous and one of the things we do is inform the crew exactly what they are getting into."

Funders were supportive participants in the report. "Funders want to understand the holes within the production process and have clarity from the start on areas of concern," says Aufderheide. Such awareness could well be a key element of the impact a report like this may have. Chevigny notes, "The report exposes important gaps in our support network as a field. It would be great if funders became more aware of these issues. As filmmakers, we are so used to shouldering the bulk of the responsibility of the film that our artistic risk-taking suffers and our financial risk inhibits our work."

Encryption of data and digital security tools is another area of concern. Trevor Timm, executive director of the Freedom of the Press Foundation (FPF), points out the commitment that FPF has made to educate documentary makers on the latest encryption tools. "We found that often documentary filmmakers don't have much knowledge on how to use digital security to better protect themselves and their sources," he notes. "But they are actively requesting our help now, and that's really important because other people in other disciplines—say, lawyers or print journalists—have not always recognized that necessity as well as filmmakers have. It really is necessary to teach your subject how to use these tools and protect themselves."

Timm and FPF are creating a report that focuses on digital security. "One of the objectives of our report is to create a digital security team specifically for filmmakers and spend a week or two with the production team of a film to learn how they operate and who they are worried about and see if we can tailor solutions to the team," he says. "Laura Poitras has inspired a lot of filmmakers to realize that they need to take this seriously. CitizenFour could not have been made if she didn't have the right digital security tools and knowhow."

Timm also highlights one of the report's most pressing concerns: the lack of legal resources for documentarians to protect themselves. Journalists have access to the lawyers their organizations hire, but documentarians who take on a powerful entity may have to retreat when faced with subpoenas for footage, or mounting lawsuits. Quinn brings up the legal best practices that the report urges. "For my film The New Americans, we knew we had a global issue and it was important that our staff realize how to respond within that situation," he explains. "It was also where we really learned, from a lawyer, that we don't necessarily qualify for the same protections that investigative journalists do. What we learned was to say that we understand the scope of the material we were investigating, and direct all other questions to our lawyer. To get them to go away and leave us be, we had to know exactly at what point our lawyer had to be brought up."

The matter of reporter's privilege and who qualifies for protection under journalistic rights is quirky, at best, in the United States. Timm asserts, "There is no federal shield law that protects everybody equally. There are instead a bunch of state shield laws that differ from state to state. Some offer protection to some people, others specifically to journalists, and it is important to be aware of what your rights are, from state to state." Dangerous Documentaries emphasizes the need to share information within the field, citing Crude and The Central Park Five, films for which both filmmakers were subpoenaed for materials related to the film. Joe Berlinger, director of Crude, was forced to turn over some of his footage to Chevron, in part because it was determined that he was not operating as an independent journalist, given that the attorney for the plaintiffs who had sued Chevron had approached Berlinger about making the film and had later requested that he remove one scene from the final version. The filmmaker thus did not qualify for protection under the New York State journalist shield law. Ken Burns, Sarah Burns and David McMahon, the team behind The Central Park Five, were subpoenaed by the City of New York for notes affecting the suit by one of the subjects of the film against the City, but were able to successfully argue for the same protection denied to Berlinger. Timm asserts, "It is not necessarily the filmmakers' fault that they don't have legal knowhow; sometimes it is very hard to find. Creating a legal pipeline for filmmakers is something that is really needed."

The report cites pro bono litigation resources in its appendices and calls for a clearinghouse of sorts, where filmmakers may have access to legal services available to them. Knappenberger recommends a website for the demystification of legal and insurance jargon. Timm agrees, pointing out that consistent, small funding to maintain and update such an effort would be critical. "The report can be a first step in ensuring that filmmakers have a resource to turn to for legal or logistical help or digital security," he says. "It could be the stepping stone toward changing the long-term infrastructure for filmmakers."

Nayantara Roy is a writer and journalist, currently pursuing a graduate degree at Columbia University.