The relationship between doc-maker and subject is based on trust. But, when trust isn’t enough, there is the release form. Broadcasters increasingly rely on releases to codify agreements and reduce liability. What they really accomplish is a matter of debate.
The main hindrance for producers is that release language can be intimidating to the signer. The Independent Television Service (ITVS) production manual contains a sample release with a typical statement: ‘I agree that the Program may be edited . . . at the sole discretion of the Producer . . . for any and all broadcasting . . . in any manner or media, in perpetuity, throughout the world.’ Most releases fill a page or more with such warrants, guarantees and representations. Even if a participant theoretically understands these terms, seeing them in print raises doubts.
‘They are a pain in the arse,’ complains producer Roy Ackerman of Diverse Production, a U.K. doc-maker who has worked with releases for over 20 years. ‘It’s usually the moment when you give them to an interviewee that the whole trust relationship is put under huge stress. It’s when the participant realizes he’s not dealing just with a friendly guy . . . [He's] dealing with a corporation and its lawyers.’
‘News’ and ‘entertainment’ have traditionally maintained separate standards for releases, and are generally ignored for the former and required for the latter. As these two genres blur together, doc-makers find themselves scrambling for clarity.
Producer Jon Alpert of DCTV has worked in both. ‘I was filming POWs in Yugoslavia for ABC’s [newsmagazine] 20/20,’ he recalls. ‘I was all by myself fighting against 200 other reporters. If I had to get releases for everyone, I couldn’t have done my reporting job.’
But on other assignments, Alpert frequently does take the time for releases. He has produced a
number of fly-on-the-wall docs for HBO, including One Year In The Life Of Crime and Lock-Up: Prisoners Of Riker’s Island. He employs the same techniques he uses as a news reporter. However, because HBO considers itself an entertainment channel, he gets releases for its programs.
‘Releases are a problem for us,’ he admits. ‘I’ve worked with other crews who have a person whose only job is to secure the release – usually a friendly young woman. [When] I’m working, it’s just me and another person. We’re chasing after gang leaders and drug addicts. The places we go, we can’t have a large crew because it will spoil our access.’
Alpert points out that problems can arise even with a release in hand. ‘Even though we have releases with language that’s supposed to be bullet-proof, people can still sue and they do. In many cases they are the same type of people who try to exploit a traffic accident. They view this as an opportunity for litigation, if they find a sleazy enough lawyer. These are the types of things that HBO really tries to fight.’
Recent American court rulings have put video crews on alert when it comes to filming subjects without permission. The u.s. Supreme Court ruled last year that it was inappropriate for CNN to enter a private home with federal officers executing a search warrant (Berger v. Hanlon). The California Supreme Court ruled in 1998 that accident victim Ruth Shulman could sue a video crew for filming her car crash rescue (Shulman v. Group W Productions). Shulman was unaware of the taping until she saw a nine-minute edited segment on the show On Scene: Emergency Response. In neither case did the video crews obtain release forms.
”Should we get release forms?’ We wrestle with that question,’ says the attorney for an American network newsmagazine. ‘Our concern is it would be hard to get releases from everybody and it might hurt us if we were getting some releases and not others.’
When the entertainment factor seems to outweigh the news value in a documentary, producers need to be thorough about releases.
‘We don’t want anyone in our documentaries who doesn’t want to be in them,’ says Harry Gantz. He and his brother Joe are best known for Taxicab Confessions, an HBO series in which hidden cameras capture the candid conversations of unsuspecting taxi passengers.
‘In certain states (such as New York and Nevada) as long as one person knows the conversation is being recorded, it’s legal to tape them,’ explains Harry. ‘Then at the end of the ride the cab driver explains what they’re doing.’ For passengers who decline to sign a release, Gantz assures them the footage will never be seen. If the passengers sign, then change their mind shortly thereafter, he gives their release back and cuts the footage. ‘Believe you me it’s a hard thing to do.’
The Gantz brothers’ forthcoming doc Sex With Strangers (Showtime) follows three couples who are swingers. The filmmakers did their best to sign participants before turning on the cameras. ‘It’s an underground movement,’ says Harry, ‘and a lot of people don’t want the general public, let alone their neighbors, to know what they’re involved with.’ One scene set in a swingers club was especially challenging. The Gantzes posted signs announcing they were shooting, then got signed releases for anyone who entered the room.
The spread of small digital cameras, internet broad-casting, and the frequent repeating of shows is raising even more concerns about the use of releases. ‘In the last five years, it’s gone from being number 22 on my list of concerns to number five,’ says Steve Rosenbaum. His New York-based company, BNN Productions, produces dozens of documentaries every year for cable channels such as MTV, A&E, MSNBC and others. Recently, the company launched a webcast channel cameraplanet.com.
Describing the new complexity of releases, Rosenbaum cites a cable show BNN produced about spring break. ‘There was a girl who participated in a fake orgasm contest. She was in public in front of 200 people. We had an on-camera release, we had a written release and she was in public. When the show aired she contacted the network and said ‘I want to be taken out of the show’. Her father was a minister and was very unhappy to see his daughter groaning on television. The network reaction was, we don’t need to split hairs on this. If someone wants to be off our show, take them off. There’s a legal issue, then there’s a common sense issue. If you’re doing an investigative report, maybe you [fight]. But not in this case.
‘There’s no hard-and-fast set of rules,’ concludes Rosenbaum. ‘The cautionary note to producers is: Are you making good work? Are you proud of it? Do you feel like you’ve violated some sense of privacy? If you feel like you did, you probably did.’