Among the directors profiled in this spring Directors Extravaganza, for example, are Oscar-nominated documentarian Morgan Spurlock (Super Size Me) whose soon-to-be-released film about product placement and brand integration in theatrical features, The Greatest Movie Ever Sold, has generated positive buzz at the 2011 Sundance and South By Southwest festivals; Lucy Walker, who earlier this year had her acclaimed Waste Land earn an Academy Award nomination for Best Feature Documentary; and Joshua Neale whose Despicable Dick and Righteous Richard will make its world premiere at next month’s Tribeca Film Festival.
Neale is repped for commercials and branded content by Smuggler. Walker recently garnered spot representation through Supply & Demand. And during some down time from The Greatest Movie Ever Sold, Spurlock wrapped Hunt’s Tomato Sauce commercials via Saville Productions for N.Y. agency Nitro.
Other documentarians of note who have been covered in SHOOT’s Directors Issues in recent years include the venerable Albert Maysles, Oscar winner Alex Gibney (Taxi to the Dark Side), Doug Pray, Ondi Timoner, and Marina Zenovich.
However, even as they stretch their creative wings, the overall community of documentary filmmakers faces a potentially chilling effect on what they do and how they do it stemming from litigation brought by Chevron against noted documentarian Joe Berlinger who too has made his mark in the ad industry, via his longstanding relationship with @radical.media.
Chevron vs. Berlinger The case of Chevron vs. Berlinger centers on the director’s documentary Crude, which tells the story of Ecuadorians who sued Texaco (since acquired by Chevron) some 17 years ago, alleging that waste and pollution from the company’s oil production over three decades caused indigenous people living in Oriente region villages to contract cancer as well as other environmental diseases.
In 2005, Steven Donziger, one of the villagers’ lawyers, contacted Berlinger, inviting him to look into the case. Berlinger ultimately decided to pursue the story, scrutinizing both sides, an investigation which yielded Crude.
But then Berlinger himself became part of the litigation. Chevron sought the outtakes from Crude–some 600 hours in all–to search for proof it was being treated unfairly by Ecuador’s government and that the country’s court system was rigging the case against the petroleum company. A U.S. District Court judge ruled in Chevron’s favor in May 2010. Then in July, the 2nd U.S. Circuit Court of Appeals limited the scope of that decision, curtailing access to some 500 hours of unused footage.
Finally this past January, the same 2nd U.S. Circuit Court of Appeals in Manhattan upheld the original lower court ruling, forcing Berlinger to turn over the full 600-plus hours, contending that the filmmaker did not maintain his journalistic independence because he acted on an invitation from legal counsel for the plaintiffs and later edited a portion of the documentary at the request of that same counsel.
The 2nd Circuit Court of Appeals in essence ruled that Berlinger gave up his protections as a journalist when he allegedly relinquished his editorial independence on the project. Berlinger has since turned over to Chevron all his Crude footage, emails related to the film, and was subject to several days of depositions.
Big chill On whether or not he was journalistically independent, Berlinger defends his actions. He explained to SHOOT that while Donziger pitched the story to him, “this was not a commissioned film. I had complete editorial independence as did 60 Minutes and Vanity Fair who also produced stories on this case that were solicited by Mr. Donziger. The decision to modify one scene in the film based on comments from the plaintiffs’ lawyers after viewing the film at the Sundance Film Festival was exclusively my own and in no way diminishes the independence of this production from its subjects. I rejected many other suggested changes and my documentary Crude has been widely praised for its balance in the presentation of Chevron’s point of view as well as the plaintiffs’.”
Yet while Berlinger affirms his editorial independence, he stressed that this shouldn’t be the litmus test for journalistic protections.
“The Court of Appeals ruling was disturbing because the facts concerning my editorial independence were never fully presented to the Second Circuit, since this was not a significant issue in the District Court proceedings and not even addressed as a relevant factor in the lower court’s decision,” related Berlinger. The Appeals Court’s ruling advances the entirely new notion that a journalist must affirmatively establish editorial independence in order to assert the reporters’ privilege, which represents a sea change in the law. The high standard it then articulates for proving ‘independence’ from the subject of a film is likely to deter a great deal of important reporting by independent journalists.
“Forcing filmmakers,” continued Berlinger, “to justify their independence, in my opinion, contradicts basic First Amendment principles and will severely undercut all advocacy filmmakers who express any overt point of view in their reporting. Indeed, my approach to documentary filmmaking is to provide a neutral presentation of multiple viewpoints, yet this was found insufficiently ‘independent’ to justify any reporters’ privilege. Many documentarians do not consider themselves neutral reporters, but rather advocates for a cause, and this ruling threatens to undermine their kind of reporting significantly. I don’t need to tell you that journalism of all forms is under assault in this country. Newsrooms are being cut back; print journalism has been gutted by the economics of the Internet; concentrated corporate ownership and fear of offending advertisers keeps certain stories out of the mainstream media.
“In my opinion, documentary-makers are one of the last bastions of independent journalism. Whether those films show a bias or not, some of the most courageous and important reporting on real problems affecting all of us is being done by the documentary community.”
Sources beware And what of the chilling effect on people who are sources of information on issues of importance? There’s concern that such sources, including corporate whistleblowers, could now be more reluctant to come forward.”
In support of Berlinger after the original lower court ruling in May of last year, Taylor Hackford, president of the Directors Guild of America (DGA), issued a statement which in part read, “Documentary filmmakers work under the presumption that their research, sources and draft materials are protected under the First Amendment…The chilling effect of this court decision will be felt throughout the documentary community, as future filmmakers will be constantly aware that their materials may be seized as evidence, and those who once might have been willing to share their point of view become wary that a documentarian cannot protect them, even if their participation is anonymous. Safeguarding the right of documentary filmmakers to protect their sources is ultimately about protecting the public’s right to know and preserving the role of investigative filmmaking in exposing the issues, educating the viewers and informing the public.”
Shallow pockets The other chill being felt from this case is of a financial nature.
Berlinger said that the cost of this litigation and subpoena compliance has been “staggering…over $1.2 million in legal fees. I am gratified that we were able to raise a significant amount of funding to mount a challenge to Chevron’s subpoenas, but the subsequent cost of complying with the court’s final order has been overwhelming for an individual. I fear that the cost to comply with Chevron’s subpoena, let alone fight it, will have a chilling effect on younger directors and on the making of future documentaries involving powerful companies or legal cases.”
As for what his next course of action will be on this matter, Berlinger responded: “At this point there is no further legal challenge I could mount. We ruled out petitioning the United States Supreme Court some time ago, because the process would have been long and expensive with a highly uncertain outcome–just trying to convince the Court to take the case would have been a long-shot. I didn’t have the resources or, frankly, the appetite to proceed on such bad odds against a very deep-pocketed opponent. (Chevron is the third largest American corporation and the third largest oil producer in the world.) Having already spent a year in this costly legal battle, I believe the best thing I can do at this point is to devote my time toward fighting for a federal shield law that would protect journalists from these kinds of invasive demands for their unpublished work product, something I encourage all of your readers who care about freedom of the press to get involved in.”
@radical activity Meanwhile, Berlinger continues to be active in different disciplines, including branded content.
He noted that his 10-year relationship with @radical.media continues but it goes beyond just being repped for commercials. His Third Eye Motion Picture Company has “an overhead deal” with @radical for all of his entertainment projects “which means I hang my hat at @radical and they get a ‘first look’ at all of my longer form film and TV work.”
For example, Berlinger is working with @radical.media on such feature fare as Paradise Lost 3 for HBO, the third in a series of feature-length documentaries examining the “West Memphis 3” murder case. And Berlinger and @radical are currently developing a feature-length documentary centered on the 25th anniversary of Paul Simon’s Graceland album; they are aiming for this film to be theatrically released in early 2012.
Berlinger has also taken on a substantive body of nonfiction television series work via @radical.media, including five seasons of the critically acclaimed Iconoclasts on the Sundance Channel (he has been an exec producer on the series since its inception and has directed most of the episodes), and the new series Masterclass for The Oprah Winfrey Network (which Berlinger has executive produced for and directed).
On the advertising industry front, Berlinger has been active in branded content and web-based initiatives for a number of clients, including the Power of Dreams documentary series for Honda, a series of web films for the accounting firm Deloitte, and a similar web project for Russell Investments.
Berlinger has also been engaged in real people commercials that have web components such as a series of real people :15s for Kellogg’s Special K cereal along with a longer format version for Facebook, and spots for frozen fish company Gorton’s of Gloucester as well as a short documentary portrait of the real residents of Gloucester.
Berlinger related that “these opportunities that allow me to pull longer format material out of traditional television commercial shoots have been a real ‘sweet spot’ for me during the last few years.”
Furthermore, he has tapped into @radical’s international reach. Berlinger noted that the company has an office in Berlin and “because I speak fluent German, they have allowed me to broaden my relationships to Europe in a very organic way.”
Related stories:
5/6/10-Oil Patch Doc Fails First Amendment Protection Says Judge
5/20/10-NY Judge Says Filmmaker Can Give Oil Footage Later
7/14/10-Federal Appeals Court Rules On “Crude” Case Pitting Chevron Against Filmmaker Joe Berlinger
9/7/10-Documentarian Subject To “Crude” Questions
1/13/11-Decision Upheld To Force Release Of Documentary Outtakes In “Crude” Case
