Silverdocs: Cautionary tales and dirty words

June 22, 2011 by Barry Walsh

The phrase “the Golden Age of Documentary” is trotted out often to describe the current state of affairs for non-fiction film and television. But while the appetite for incisive, investigative and engrossing content may be at a high, and while technology advances can help turn anyone with an idea into a filmmaker, other recent developments are applying a little tarnish to the shine of the times.

That was one of the messages conveyed during “A Crude Awakening: Chevron v. Berlinger,” one of the heavily attended panel sessions of the first full day of the Silverdocs Documentary Festival and Conference in Silver Spring, Maryland. The session, featuring Crude director Joe Berlinger, legal counsel Seth Berlin from the firm Levine, Sullivan, Koch and Schultz and Writers’ Guild of America East president Michael Winship took a detailed look at the protracted legal tussle between the filmmaker and oil giant Chevron over hundreds of hours of outtakes from the film.

Berlinger’s film explored the story behind the largest environmental legal battle in history, between inhabitants of the Ecuadorean rainforest and oil giant Chevron. In the case, lawyers for the Ecuadoreans maintained that Chevron was liable for alleged environmental damage to the rainforest sustained by years of drilling by now-Chevron subsidiary Texaco. The case has resulted in a US$18.2 billion judgment handed down by the Ecuadorean court against Chevron, which the company is contesting, calling the judgment “illegitimate and unenforceable” in a recent statement.

Berlinger was drawn into the midst of the legal tempest, which is now 18 years old and counting, when Chevron subpoenaed the filmmaker to obtain some 600 hours of footage, maintaining that the outtakes contained evidence that its due process was violated in the Ecuadorean case. After Berlinger and team won what was called a “limited victory” in July of 2010, in which Berlinger was ordered to turn over some but not all of the footage, the 2nd Circuit ultimately ruled that the filmmaker could not invoke journalistic privilege to protect the outtakes. The court deemed the film was not “independent journalism,” with one of the chief bones of contention being that Berlinger was originally approached by the chief lawyer for the plaintiffs, Steven Donziger, about making a film about the case. Subsequently, Berlinger was also subpoenaed by Chevron to turn over electronic documents, emails and hard copy documents from the last five years.

While, in Berlinger’s case, a settlement was eventually negotiated, it came after much expense and substantial stress. The director said that while Crude cost approximately $1.2 million to make, legal costs incurred thus far are at $1.3 million. Still, said Berlinger, “the film lives… and to me, that was an important victory.”

During the panel, Berlinger, Berlin and Winship highlighted the chilling effect the story could have on documentary filmmaking, with the director saying that he’s already heard from filmmakers whose subjects are now reticent to bring stories to light for fear of litigation. Documentarians should particularly be concerned with the role journalistic privilege played in the affair, said Berlinger, as while Donziger did pitch the idea to the filmmaker, he also pitched it to Vanity Fair, 60 Minutes and other outlets that ran pieces on the case. Indeed, Berlinger maintained that journalists are pitched story ideas from subjects constantly, and pitches are different than commissions.

While moderator Andrea Meditch of Back Allie films was probably correct in her assertion that “it’s a story that strikes fear in all our hearts,” the panelists tried to impart advice for filmmakers looking to tackle weighty issues. Berlin implored the audience to make sure they factor E&O coverage into their production budgets, and all of the panelists urged delegates to keep an eye on efforts to pass a federal shield law for journalists.

“I think it’s been harder than ever to make documentaries,” summed up Berlinger regarding the whole affair. “But what this fight is all about is that it’s more important than ever for us to do what we do.”

What exactly it is that documentarians do and how they do it was the subject of a later panel that was somewhat lighter in tone. “Changing the Public Perception of Documentary” brought together filmmakers, distributors and marketers of documentaries to discuss new ways of selling docs to the masses, as well as new ways of crafting docs to gain wider appeal.

A fair bit of the discussion hinged on whether or not there was a stigma attached to the term “documentary.” Annie Roney, founder of distributor ro*co films international, said that from an international standpoint, “documentary is not a dirty word… It’s all about the characters and no one [from a buying perspective] seems too concerned with the word.”

Indeed, panelists said that new techniques used by filmmakers, such as weaving story-telling approaches often utilized by fiction filmmakers within a doc narrative, could help not only widen the appeal for a doc project but also help broaden the genre itself. But as to whether the rise of reality television could play a role in wider public acceptance and bigger box office numbers for docs, panelists were divided.

“I think it’s great that there’s a generation of consumers not put off by ‘real,’” said Crowdstarter co-founder Paola Freccero, while director Marshall Curry (If a Tree Falls) said that drawing a correlation between documentary storytelling and reality TV was akin to “feeding people candy and then expecting them to appreciate a complex dinner.”

The Silverdocs Documentary Festival and Conference continues until June 26.

Tags: Annie Roney, Joe Berlinger, Marshall Curry, Silverdocs