Docs & the Law Blog

Penn Law

Do Documentary Filmmakers Need a Legal Defense Fund?

February 26, 2014
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    Thom Powers at DOC NYC in 2013
    Credit: Simon Luethi (courtesy of DOC NYC)

By Tom Isler

Thom Powers thinks documentary filmmakers need a legal defense fund to help fight court battles of significance to the documentary community as a whole.

Powers is the documentary programmer at the Toronto International Film Festival, and founder of DOC NYC in Manhattan, which over the last four years has become one of the premier documentary festivals in the country. Among many other notable entries on his resume, Powers co-founded the Cinema Eye Honors, which is dedicated to promoting the best in nonfiction filmmaking. He has positioned himself as an influential voice in the documentary world.

Powers recently put out the call for a legal defense fund in a conversation with Rahul Chadha, blogger for Stranger Than Fiction, a documentary series that Powers curates at the IFC Center in New York City.

In discussing the impact and influence of large funding institutions, Powers suggested that doc funding bodies (like the Ford Foundation or the Sundance Institute) could pay more attention to providing or supporting legal defenses for filmmakers. He said:

“I would like to see an organization take the lead in finding a way to support independent filmmakers whose legal cases will set precedents for the whole field. In an older documentary structure, filmmakers were on the staffs of networks. When Peter Davis faced a Congressional investigation for THE SELLING OF THE PENTAGON in the early 70s, he had the backing of CBS News. He didn’t have to worry if he was going to lose his company or livelihood because there was an institution to back him up. Independent documentary filmmakers don’t have that, and increasingly, this kind of investigative journalism, or even just profile filmmaking, is being undertaken by independent filmmakers. 

“I’m inspired by the model that Pat Aufderheide and Peter Jaszi created when they wrote their report Reclaiming Fair Use out of American University. That report identified industry guidelines and standards that have given everyone in documentary–filmmakers, distributors and lawyers–a sense of appropriate boundaries in fair use. We could use institutions to similarly address questions of ethics in filmmaking, such as the questions raised in the CENTRAL PARK FIVE case, or the legal case over Joe Berlinger’s film CRUDE, when the oil company subpoenaed his tapes.”

Of course, some legal defense resources already available to documentary filmmakers. They just might not know it.

The Society of Professional Journalists, for example, runs a Legal Defense Fund to support professionals fighting for freedom of the press and free speech. Hagit Limor, chair of the Fund, says that the SPJ would back documentary filmmakers in an appropriate case.

“The LDF Fund intends to help journalists of any stripe or people suing for rights that would benefits journalists as well,” she says. “If the issue at hand impacts the First Amendment or access issues, we could be interested. Besides, many documentary filmmakers are journalists, so I don’t find this to be exclusive.”

As Powers observed, independent filmmakers today are producing significant investigative journalism, and there are likely many resources that were historically dedicated to print journalism that would be willing to support investigative filmmakers. There is a wide range of legal resources potentially available for documentarians facing legal trouble – such as Volunteer Lawyers for the Arts, various First Amendment legal clinics like those at Yale and UVA, the U.K.-based Media Legal Defence Initiative, and the Reporters Committee for Freedom of the Press.

But not every legal problem a documentarian faces would interest the SPJ or likeminded organizations. One of the foremost legal issues confronting documentary filmmakers is copyright and fair use, and lawsuits involving such claims tend to arise less frequently for print or TV journalists. Consequently, even if filmmakers were aware of legal defense funds for journalists, the funds might not be able to help.

When Joe Berlinger sought to protect his outtakes from Crude from subpoena in 2010 – an issue that garnered wide interest from journalists – he turned to Kickstarter to raise more than $30,000 from 479 individuals (offering, in return, DVDs, t-shirts, and autographs). He held fund-raising screenings, and teamed up with sympathetic organizations like the Writers Guild of America and Powers’s Stranger than Fiction, to help fill the seats. Had there been an institutional structure in place, Berlinger might have had an easier time raising money.

If there’s one thing documentary filmmakers could stand to spend less time doing, it’s fundraising. So Powers is right to call on documentary funding organizations to think about serving the community in different ways. (I agree with Powers that industry associations or institutions could help filmmakers facing subpoenas by producing reports about common industry practices and demonstrating their compatibility with editorial independence. I recommended that in an article analyzing Chevron Corp.’s suit against Berlinger.) 

SPJ’s Limor has a few words of advice for any organization looking to start a defense fund for filmmakers: “Make sure you’re funded well from the beginning. Identify your mission clearly. And above all, find a mechanism to get the word out that you exist. That can be a challenge, believe it or not.” image