Finding an Audience can cost Documentary Filmmaker’s their Reporter’s Privilege

In a recent New York Times business article about documentary film distribution, Tanzina Vega described how producers of the upcoming film Girl Rising have crafted a tailored marketing campaign.

To promote the new film, and demonstrate the impact that documentaries can have on audiences, they will rely on technologies often used by more traditional advertisers, including personalized ads for employees of companies viewing them online.

Girl Rising produced by 10×10, “journeys around the globe to witness the strength of the human spirit and the power of education to change the world.” 10×10 describes itself as a “global movement for girls’ education; a film and social action campaign. People working together to change girls’ lives.”

Funding documentary filmmaking requires collaboration and creativity. Financing and distribution partnerships, therefore, provide a useful approach. The distribution strategy is echoed by docuMentors, providing tips on how to distribute documentaries “in a changing world.” Among the good advice are themes consistent with the New York Times advertising coverage:

1. Design a Customized Distribution Strategy: Every film needs a customized distribution strategy. This strategy should be designed as early as possible, increasing funding options. To create this strategy, you must understand your goals & priorities, identify your core audience, identify / plan different versions of your film (theatrical, TV, DVD, foreign, educational), determine your distribution avenues and release sequence, identify potential partners, and determine on- and off-line positioning. Your strategy should be flexible and assessed and redefined.  …

9. Partner with Non-Profits and Online Communities: Non-profits can be indispensable distribution partners. They can build awareness among key core audiences by hosting screenings or promoting on their websites or in publications. Online communities can also increase buzz, audience, and sales.

Despite the sound advice this provides regarding the distribution of a documentary film, it may have a surprising and unintended consequence to the characterization of the documentary film as a work of journalism entitled to a qualified privilege from subpoena or civil discovery.

The Reporters Committee for Freedom of the Press provides an excellent summary of the Reporter’s Privilege. In forty states, journalists are protected by statutes that limit the ability of courts to issue subpoenas or civil discovery orders. These protect the confidential sources and journalist’s work product. These protections are highly qualified, however, often basing the protection on the professional journalistic role of the individual seeking the privilege. They also vary considerably from state to state – and even differ between federal and state rules within the same state.

Oversimplifying the mosaic of state laws and constitutional protections – the core basis of protection is the obligations of the journalist’s neutrality and the ongoing professional need to obtain the news-gathering information. As a result, these rules may extend to documentary filmmakers, bloggers, book authors and others, but the extension beyond traditional journalism is inconsistent and easily lost. In addition, the reporter’s privilege does not extend to eye witness evidence, so footage captured that includes commission of a crime is unlikely to receive any privilege.

When the documentary filmmaker becomes an advocate, the privilege is likely to be forfeit. An example of this came from Joe Berlinger’s documentary Crude. A cut of the documentary had been shown to the plaintiffs in the lawsuit which was the subject of the documentary. The plaintiff’s lawyers asked that one scene be deleted from the movie. Even though the decision to remove it was the filmmaker’s, the court found the relationship was no longer that of an independent journalist and the shield laws no longer applied. Despite support from the documentary film community, the New York Federal Courts found that a relationship between the plaintiffs in the litigation and the filmmaker which made the filmmaker an advocate rather than journalist. Berlinger had to turn over his 600 hours of unused footage as well as all documents and correspondence.

More recently, New York City attorneys have demanded Ken Burns provide footage related to interviews conducted in association with The Central Park Five, his documentary film focusing on the conviction and exoneration of five African American teens who had been convicted of raping a women in New York’s Central Park. The film documents the wrongful conviction. Despite confessions from four of the men, DNA evidence proved that a different person had committed the crime. City officials have taken the position that Burns is an advocate for the exonerees and their families, which negates the neutrality and the privilege. The city is fighting civil liability for the wrongfully convicted men. The demand is still pending.

For filmmakers seeking financial or distribution support from nonprofits and social action organizations, the filmmaker should understand that one cost of that support is the elimination of independence in the eyes of the courts. Even if the filmmaker is not under any contractual or actual control by the social action organization, the agreement may be enough to void any claim of neutrality, making the filmmaker’s footage and files open to the courts and the attorneys.

While documentary filmmakers must be creative in funding their work, care must be given to balance support with independence. The alternative can be very costly.

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