Truth and Consequences: Documentary Filmmakers Who Run the Risk of Legal Retribution

Joe Berlinger’s Under African Skies

Holly Willis

Fredrik Gertten sounds weary. And he should. The documentary filmmaker has spent the last two years dealing with the fallout from a lawsuit filed against him by the Dole Food Company after he made a film, Bananas!*, chronicling Nicaraguan plantation workers’ legal efforts to seek reparations for suffering the ill effects of pesticides used by Dole with its banana crops.

Gerrten’s legal battle first began in June 2009, when Dole threatened the Los Angeles Film Festival, where Bananas!* was set to premiere in competition. In response, festival organizers removed the film from competition, screened it as a case study, and prefaced the screening with an announcement declaring that the film may include erroneous information. A few weeks later, Dole brought a suit against Gertten, claiming defamation and saying that the filmmaker had knowingly included falsehoods in the film. In October 2009, Dole dropped the suit.

Gertten tells the story of the threats against him in his new film, Big Boys Gone Bananas!*, screening in the World Documentary Competition at the 2012 Sundance Film Festival. “With Bananas!*, I told a story about a court case taking place in Los Angeles,” explains Gertten. “It was a story that the LA Times was covering, that CNN was covering—every major news corporation covered it. I only used public material, so what could happen? I had no idea that I would be attacked in this way.”

He continues, “I could guess that they would not like the film, but legal action? What I didn’t know at that time was that if a big corporation wants to sue you, even if they’re wrong, they can do it. And with the weight of it they can scare you away. Maybe I was naïve enough—or Swedish enough—to think I was safe.”

With Big Boys Gone Bananas!*, Gertten details the devastating impact of the suit on him, as well as on the film’s producer, Margarete Jangård, and the film itself, which could not be distributed until long after it was completed.

“For me, the bigger issue is understanding how corporations control the story to protect their brand,” Gertten says. “I’m not really looking for revenge on Dole; I’m just telling a story about what happened to me, through my experiences.”

Filmmaker Joe Berlinger has also suffered the trauma of a corporate lawsuit after Chevron subpoenaed more than 600 hours of footage from the production of his film Crude in April, 2010. Berlinger responded by stating that the footage should be protected; and that being forced to hand it over would constitute a violation of the first amendment. On Friday, May 7, 2010, a judge subsequently ruled against Berlinger. He then had to decide whether or not to appeal.

“Many of my advisors were telling me that from a legal standpoint, that chances of a complete reversal of the decision to hand over all 600 hours of my footage were very slim,” recalls Berlinger. “Federal shield laws protecting journalists are weak, and a lot of very smart lawyers said there was no way I would be able to completely reverse the lower court’s decision on appeal.”

He continues, “They said, ‘The best you’ll do is reduce the amount of footage that you’ll have to give.’ They said it was an uphill battle, it would be very costly, and it could get very ugly. It would be death by litigation.”

With this information, Berlinger sat home agonizing over whether or not to appeal. On that Saturday, the New York Times ran a story on the ruling, and Berlinger said a funny thing began to happen. “Unbeknownst to me, [I.O.U.S.A filmmaker] Patrick Creaden, who I barely know, began rallying other documentary filmmakers. Then the International Documentary Association, Norman Lear’s people, Robert Redford’s people—they all contacted me.” Berlinger said he was inspired by the support and sense of community. “So Monday morning, I made the decision to fight.”

Berlinger also believed he had a moral obligation to oppose Chevron. “I felt that I had to fight it,” Berlinger declares. If people who have a story to tell have to fear the circumstances of speaking to a reporter, or if news gatherers have to worry about the cost of litigation, it will have an extremely chilling effect on this kind of filmmaking.”

Berlinger did fight, but ultimately lost the battle, which he regrets, both personally and for the message the loss sends to other filmmakers. “Dozens of filmmakers have come to me asking for advice, saying that their subjects are unwilling to speak to them,” he says. “The growing trend is that documentarians working on sensitive subjects are increasingly being silenced through economic forces.”

That said, both Gertten and Berlinger assert that documentary filmmakers today are more crucial than ever. “I believe we live in an era in which the media is increasingly in the hands of a handful of corporate players and therefore certain stories never make it into the mainstream media, for fear of offending advertisers,” Berlinger says.

Documentary filmmakers, however, can freely explore these stories. “The other factor is that, in general, news organizations are under all kinds of pressures and news rooms are being cut back,” he continues. “The independent documentarian is one of the last bastions of independent reporting.”

Berlinger’s experience with “the West Memphis Three,” a trio of young men accused of murder, underscores the power of documentary filmmaking. In 1993, Berlinger and Bruce Sinofsky began shooting what would become the Paradise Lost trilogy of films.

The project showcased egregious problems in the case, and ultimately influenced its outcome, with the recent release of the three men from prison. “The Paradise Lost series has had a tangible impact on the lives of those wrongfully convicted teens,” says Berlinger, adding, “I think documentaries can be hugely helpful.”

Both Gertten and Berlinger also agree that documentary filmmakers need to find a way to address corporate power when it’s mobilized against them. Berlinger notes that the IDA has helped centralize information and resources, but adds, “We have to face the economic reality that filmmakers are not deep-pocketed, so when we’re dealing with corporations, it’s an uneven playing field.”

Gertten advocates for communal support. “We as a community should help defend each other,” he asserts. “We really have to talk about this.” He and Berlinger, who will also be at the Festival to premiere his new film, Under African Skies about Paul Simon and the making of the Graceland album, definitely plan to address the topic of litigation with the indie film industry at Sundance.

Looking to the future, one step might center on sharing tactics and determining best practices. In addition, the work of the Center for Social Media—dedicated to addressing issues concerning copyright, fair use, and the fears of litigation—may serve as a model.

Finally, the previous year has demonstrated the power of collaboration, especially when it is mobilized by communities who feel victimized by those in power. As Gertten insists, it really is time to talk.

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