The definitions of “documentary” or “nonfiction” filmmaker and “journalist” have a lot in common, and the lines between the two communities remain blurry. Still, there are typical practices and commitments that subtly distinguish the two roles. Filmmakers often display a more defined point of view about their subjects, and frequently operate without the support of news organizations. As documentary filmmaking has become a major force in public affairs — and a new generation of independent filmmakers has expanded boundaries — unique questions have arisen about how best to protect and encourage important public-purpose work done outside of traditional media organizations.

A 2015 report from American University’s Center for Media and Social Impact, “Dangerous Docs: Reducing Risks When Telling Truth to Power,” surveys issues faced by “makers” — independent or nonfiction filmmakers, or video journalists — based on 53 interviews with persons deeply immersed in this media space. The study, led by principal investigator Patricia Aufderheide of American University, examines “recent situations where makers of long-form, nonfiction, moving-image work have faced such challenges in order to draw lessons from past experience and learn … what kinds of support are available and what kinds of support are needed.”

In particular, researchers focused on problems relating to personal safety while in the field; negative public-relations campaigns against makers; lawsuits and legal troubles; problems with insurers; and issues with partners and funders. The review was conducted with an eye toward ensuring that hard-hitting documentary work in the future can be carried out more successfully, with more support for those doing public-purpose media work.

The report’s recommendations include:

• Although filmmakers may employ different fact-gathering and storytelling techniques, they nevertheless need to conform to certain editorial values and demonstrate their good-faith efforts if they want to mitigate risk: “Makers telling truth to power need both to observe and be seen observing journalistic standards, whether they think of themselves as journalists or filmmakers. Observing those standards won’t stop the attacks, or attempts to discredit the work, but doing so removes some easy targets, and it accords with basic values shared throughout this community.” The journalistic guidelines of Frontline provide one model for practice.
• When films are finished, makers may want to screen the work with subjects involved or implicated. “Transparency at the right time can help makers, although makers need to balance that with other risks. Transparency with subjects can short-circuit potentially expensive complaints.” (This is the advice of some legal experts, the report notes, but not all journalists would agree to this practice.)
• Before entering dangerous areas, makers should “conduct a threat assessment…. Evaluate risks and possible outcomes before starting the work. Consider who and what needs to be protected, and what resources and methods might be used to access or attack them.” Prior to going into the field, teams should participate in “conflict zone and harsh environment trainings.”
• Because well-funded groups and companies may launch counter-campaigns and attacks, makers should “have a crisis-management plan in place ahead of time with steps to take, channels to use, key contact and resource information and pre-drafted statements. Key areas to consider include public relations, legal, security, operations, finance and human resources. During the crisis, the three key tenets are (1) be quick, (2) be accurate, and (3) be consistent.” Further, the report advises that “before you release the film into the world, line up experts who don’t know you, who aren’t involved in the film, but who will probably agree with your point of view.”
• Be proactive about financial protection: “Get insurance as soon as possible in the project; if you seek it after problems surface, you run the risk that insurance deductibles will be higher or that conflict may be excluded from coverage altogether. This can get complicated and hurt distribution deals.”
• The report notes that, although investigative journalists are frequently well versed in legal issues, “Filmmakers by contrast were typically not informed about either the range of legal information available to them, which can help them prevent trouble, or the range of laws protecting journalists in different states in the U.S.”
• The area of legal issues and retaining counsel is complex and should be carefully thought-through. Key areas of consideration include: (1) “If producers are working on a co-production or internationally, they should make sure they have a line item in the budget for local legal advice, most helpfully in pre-production”; (2) “If work touches on domestic litigation (or something that subsequently is litigated), footage may be subpoenaed by parties to the action. Thus, routine policy on keeping or destroying records, outtakes and other materials will be important. Destroying anything once there is talk of legal action (even if it’s not filed) could be illegal.”
• Filmmakers must know the distinctive, and often nuanced, laws of the places in which they are filming: “Each state has its own laws governing sound and video recording. States also have different laws on using ability-enhancing tools — anything that would let you see beyond what the unaided eye would see, for example (i.e., zoom, telephoto lenses). There are also special rules for filming children, filming police, and filming in hospitals, which vary from state to state.”

The report ultimately urges that filmmakers build better ties with journalism organizations, which have long experience in dealing with similar problems; better training for filmmakers; and better organization for legal support and ensuring freedom of expression. The report also provides a list of useful resources for filmmakers, and helpful information about instances of litigation involving nonfiction filmmaking are documented in the appendix.

Keywords: training, visual reporting, multimedia journalism, law, news