(First published on blogcritics.org)
Are you a filmmaker or a journalist? If the script you’re working on is titled Zombie Princesses vs. Sharkzilla, this is probably not an issue. But if you are using your filmmaking skills to document the reality of social issues such as unjust imprisonment or the AIDS epidemic, you’d better put on your journalist hat and get lawyered up. The people you offend by telling the truth will be sending you subpoenas.
This issue was illuminated at the January meeting of Documentary University (DocU), theInternational Documentary Association’s series of educational seminars and workshops for aspiring and experienced 
documentary filmmakers. Taught by artists and industry experts, participants receive vital training and insights on topics including: fundraising, distribution, licensing, marketing, and business tactics. The session, “Navigating the Intersection of Documentary and Journalism”, was held at the Cinefamily Theater (formerly the Silent Movie Theatre) in Los Angeles.
Karin Stellwagen (instructor at The Brooks Institute) moderated the discussion on the intricate balance between video journalism and documentary filmmaking. Participants included John David France (How To Survive A Plague), Sarah Burns (The Central Park Five), Michael Donaldson (Partner, Donaldson & Callif). Both France’ and Burns’ films have been nominated for Film Independent’sIndependent Spirit Awards in the Best Documentary category. The awards will be presented at a ceremony on February 23.
Stellwagen initiated the discussion by asking, “What are the squishy issues where documentary and journalism intersect? What do we need to do, as filmmakers, to prepare ourselves?”
Attorney Michael Donaldson was first to reply. Donaldson, whom I’m convinced is perhaps the only inspirational lawyer outside of To Kill a Mockingbird, is an entertainment attorney who has been fighting for independent filmmakers for more than 30 years. He is responsible for many agreements and pieces of legislation that have protected and extended the rights of documentary filmmakers. He wrote Clearance & Copyright, a standard text in film schools and winner of three national book awards. He also co-authored The American Bar Associations’ Legal Guide to Independent Filmmaking and serves as General Counsel to Film Independent (home of the Independent Spirit Awards and the Los Angeles Film Festival) and the Writers Guild Foundation.
“The first thing I did,” Donaldson said, “was look at Webster’s New World Dictionary. It’s a book you might have left over from college. It says a journalist is a person who gathers news for a newspaper. But that was pre-Internet. Get rid of that. The courts now say a journalist is one who engages in investigative reporting and intends to spread the information uncovered to the general public. Experience or employment by a news organization is not necessary,” he said. “The question is, ‘Do they possess the intention to spread the news to the general public?’.”
Why is this important? Donaldson explained, “So you’re a journalist. Does that mean you get the journalist privileges? This actually varies in specific items from state to state, but, in general, it protects unpublished work from being disclosed. This protects your unpublished sources. You can say to someone that ‘I’m keeping your identity secret.’ This is a protection not obtainable any way else.”
This protection has been an issue for both Burns and France.
Sarah Burns is the author of The Central Park Five: A Chronicle of a City Wilding (Knopf, 2011) and, along with David McMahon and Ken Burns, the producer, writer, and director of the documentary The Central Park Five, which premiered at the Cannes Film Festival in 2012 and earned the NYFCC award for best documentary.
The book and film are based on the Central Park jogger case, an assault and rape of Trisha Meili, a female jogger in New York City’s Central Park, on April 19, 1989. Five juvenile males—four black and one Hispanic—were tried and convicted for the crime. The convictions were vacated in 2002, when Matias Reyes, a convicted rapist and murderer serving a life sentence for other crimes, claimed to have committed the crime alone and DNA evidence confirmed his involvement in the rape.
Burns has had a long history with the Central Park five story. She said, “I was an intern for a civil rights lawyer and wrote my thesis on this, but I couldn’t let go, so I decided to write a book. I didn’t have a film in mind, but I suppose that was inevitable because my dad was a documentary film maker and that’s where I learned to tell a story.”
Burns said that when she first started writing about the case it was very academic. “When I started on the book I realized that I was going to have to talk to people and get them to talk to me,” she said. “They might not. It took years to get them to open up. If not for the process of interviewing them for the book, the interviews for the film would not have been emotional and personal. This allowed us to make the film without narration. When we did the interviews with the five, unlike my dad’s films, we could step back and let them tell the story themselves.”
Stellwagen asked, “What about the lawsuits?”
Burns said, “The families are suing the City of New York because of the way police and prosecutors handled the case. We were served for our footage, our notes and everything. They accused us of not being journalists. We are waiting to hear back from the judge.”
Donaldson has filed an Amicus brief in the case on behalf of the IDA. “When you make a film about a controversial subject, this happens a lot.” In his brief, Donaldson argues that the filmmakers are speaking for the good of the whole community. “So think about what your doin’, judge.”
Unlike Burns, David France does have a print journalism pedigree. He is a former Newsweek senior editor, known for his pieces bridging science and culture. His work has appeared in the New York Times and New York magazine, where he is a contributing editor, and has been recognized with a National Headliner Award and a GLAAD Media Award, among others. How to Survive a Plague — his directorial debut — has won the IDA’s Jacqueline Donnet Emerging Filmmaker Award, the Gotham Award and New York Film Circle Critics award for first time filmmaker and best documentary, among others.
Stellwagen asked France for his take on this.
He said that the journalist status is critical. “Why? Because it’s important that people know we’re not functioning as law enforcement. If we had to give up our sources, that would defang journalists and no one would talk to us at all. That’s why journalism is special in our society. I have used this shield and the privilege often.” France emphasized the current importance of this issue on the national level: “This administration is subpoenaing journalists more than any other administration in my memory.”
Donaldson explained that what filmmakers had to do to maintain their journalist status was to avoid stepping over the line to the publicist world. “What your opposition will try to do is dig up facts that make you a publicist, not a journalist. Courts have held that publicists have no protection.”
He said that you will lose your journalist standing if you accept payments from your subject, allow them any kind of approval of your content, or involve them in the editing process.
Donaldson concluded by pointing out that no other country in the world has anything like our First Amendment’s protection of Freedom of the Press. “So, do the work,” he said. “Check your sources, not once, but several times. Then you can tell the judge or the heckler that you’ve done your work. You’re reporting the facts, not just repeating something you were told.”
More information is available at the IDA’s Doc U website.
