How to Stay Out of Court: Full Frame Film Festival Panel

When documentary filmmakers take on tough subjects, sometimes the  targets of their investigations attack—like when Chevron demanded that filmmaker Joe Berlinger turn over raw footage from his film Crude. At the Full Frame Documentary Film Festival--noted for its intimate, community approach and filmmaker-friendly environment—panelists on the panel I moderated discussed how to avoid what lawyer David Smallman called the “no see ‘ums,” or unpleasant legal surprises.

Filmmaker Alex Gibney (he was at Full Frame with Magic Trip) recounted one case where he was able to challenge a subpoena for raw material, and another case in which he was able to negotiate for a lesser amount.  In both cases, he and his lawyers were careful to deal with the demand quickly and respectfully. Susan Saladoff, a lawyer who worked for years in public interest law, was debuting her first film, Hot Coffee, which uses the infamous MacDonald’s case to expose corporate campaigns to gut civil law of its little-guy protections. She cautioned the audience that corporate money has influenced the placement of many first-level judges; therefore filmmakers need to think strategically in advance, to minimize risk of a lawsuit.

Lawyer Karen Shatzkin reminded the audience that competing rights are in play. A filmmaker wants to exercise freedom of expression; subjects want privacy; and an accused person (and you never know when you might be one) wants access to material that could help them defend themselves.Courts have various ways of balancing the different values. “The power to act starts with knowledge of the law,” she said.

Smallman’s legal firm has designed boilerplate language for a personal release, making clear two critical things: 1) the filmmaker establishes him/herself as a journalist (thus being able to claim journalistic protection in some states), and 2) the subject grants access under condition that the footage, except for the material used in the final version of the film, remains confidential.  Smallman also recommended a “document retention policy,” which he also called a “document elimination policy.” He recommended that filmmakers decide how long they want to retain raw footage after a film’s release, and that they also take precautions with material, such as digital encryption.

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