Guest Speaker Emily Bazelon on Ethical Links Between Filmmaking and Journalism

We were lucky to have another fantastic guest speaker this week. Emily Bazelon, who writes for Slate and the New York Times, answered a number of our questions about ethics in filmmaking and journalism.

Her first piece of advice was to “choose an identity for this project and to be our journalist selves.” One risk for this kind of project is that we might go in thinking that we can wear both hats, both as an objective journalist (and collector of good footage) and as a protector of the people in the film. The problem then is that if we’ve represented ourselves only in the latter way, we might damage relationships with the people we’re working with if we then proceed to act more as a journalist and less as a protector. Essentially, there’s danger in setting up a premise and then deviating from that premise.

It’s also a good idea to presume that people are not at all media savvy. If the person you’re interviewing doesn’t deal with the media all the time, then it’s very easy for them to get confused. Sometimes you have to be more than just *clear*; you have to say what you don’t mean as well as what you do mean. The key is that when you encounter a worst-case scenario, you are sure that you did everything you could to prevent that scenario from happening. We should try to err on the side of not using material if it makes someone upset.

As for litigation, a journalist has no other obligations and is free under the First Amendment to investigate as much as they can, outside of protective orders and the like – and more informally, outside of wrecking the case of a lawyer, or making someone’s life worse off.

One way to protect people in a film is to hide their identity by blurring their faces. The trickier question here is when someone says that it *is* OK to show their face.. how do you know that it is really OK? Probably a good idea to ask advocates in this case whether it’s a good idea. You have to decide how to tell a story – whether or not to use peoples’ faces. Sometimes just showing another body part (hands, etc) in conjunction with their voice is sufficient; sometimes it’s not. With print, it’s obviously easier to take people’s names out; with film, it’s a bit more difficult.

You should not promise that a film is going to make a situation better for a person. You can instead say something like “I’m very interested in your story and want to do an interview with you; I want to do whatever I can to protect you from legal risk; what I want to hear is simply your honest truth-telling.” Then you have to keep reminding the subject of who you are and where you’re from. The interview subject’s guard will eventually come down, but you have to be sure not to take advantage of this as you become more loyal to the film by cutting corners on your promise.

Safest territory is to stay closely within your identity as a journalist (not lending small amounts of money and so on to a film subject), but this can be hard to pull off especially when working with people who seem vulnerable. The problem with deviating from this identity is that the subject can become beholden to you. One possible solution, if you want to give money, is to give it to them after the project is complete. Blurring the lines of journalism, while easy to do, can create complications for the subject, and can make it hard for you to dial back from the blurred line. So say that what you’re offering the subject is *listening* to them.

A question came up as to whether we have an obligation to communicate to subjects how their interview might be used and juxtaposed with the perpsectives of people with whom they might not agree. Generally, there is no such obligation to say “the project will not entirely be from your point of view,” but we should make an effort not to twist or deviate from the words of interview subjects. One way the Times solves this in the editing process is by taking quotations and reading them back to the people who allegedly said them, and determining whether the quote is accurate – no need to practice “gotcha” journalism. Especially if you’re creating characters in a movie, you want the characters to be both believable and recognizable to the characters themselves.

“Most stories don’t have two sides; they either have one side or many sides,” said Emily, quoting Linda Greenhouse. It’s OK, then, to have an opinion and to present a reported opinion without trying to hide the ball; you can even attempt to lead people to a conclusion while attempting to present the best counterarguments in an honest way.

Sharat pointed out that one tricky part with film is that it’s possible to keep an entire statement in a film but to show images that might contradict what is being said. E.g., Michael Moore’s use in “Roger in Me” of images that conflict with the words being said. This is a very powerful and sometimes dangerous filmmaking tool.

A class member asks what the line is between being fair to a subject and making an argument? For instance, we might have footage and affidavits that conflict with that footage; how do we make this juxtaposition? In the case of testimony conflicting with actual fact, seems acceptable to use.

The way that people respond to story and narrative is through a few individuals. Certainly, don’t represent that you’re speaking for an entire group’s common experience when you’re showing one person’s experience, but don’t tie yourself up in knots with worries about essentializing the characters.

Closing thoughts from Emily: Be open-minded towards your subjects. If everyone gets mad, it sometimes can be a sign that you’re doing a good job. Also, being open-minded and honest doesn’t necessarily mean saying what you think to an interview subject all the time.

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Discussion of Groups’ Proposals and Early Filming Efforts

Today, our course began with a conversation with the national security team, which is looking into the kind of profiling that takes place at mosques. A member of this group noted her initial outreach to film subjects and described the group’s pre-interview research with coordinators and imams at mosques; some of this pre-interview research went well (in terms of cooperation with the filmmakers’ goals, in terms of willingness of subjects to be filmed, and in variety of sound bites already obtained) and others did not. The group also made some progress on researching potential increases in domestic violence since 9/11 but has so far been unable to find the right person or family to follow in documenting this research. There was some interesting difficulty in the group’s basic narrative goals slipping away from them as they were given more ideas by the people they contacted during pre-interview research, but the group reiterated its interest in emphasizing the plight of women in light of national security investigations.

After this discussion, Sharat showed a clip from Errol Morris’ Fog of War, describing filming techniques and the attempt to make a subject communicable. The idea of some Visual Law groups of showing families interacting and being in the park, and making these families relatable, was demonstrated in the Morris clip where he expressed death totals from the nuclear bomb in terms of the comparable size of American cities, and thus made abstract numbers seem closer to home.

We spoke briefly about what would constitute *too much footage* for a film. It was suggested that each team shoot for approximately ten total hours, but this total is flexible.

We then talked about the immigration team‘s work, which has so far been centered around a family’s struggle after an immigration raid at a convenience store. They have done some filming over the weekend, and ran into the issue of people who were very suspicious of how their footage would be used. The group noted that it would both have to work to gain the trust of their subjects as well as be very sensitive to individual issues — for instance, the group was at a local immigration center during its intake day, and the leader of the center suggested that it might be a bad day for filming given the large number of people present. One member of the group is planning to attend oral arguments related to the raid, and we discussed whether and how the team might obtain video, audio, or textual footage of these arguments from the court.

As for footage of the raid itself, we discussed how to intersperse this footage within the film, and analyzed Errol Morris’ strategies in Standard Operating Procedure. Should all of the raid footage be used initially (“let’s now back up and show how we got to this point”), should this footage be broken up into different pieces, or should pieces be shown repeatedly as knowledge and context are gained relating to the raid? Compare to strategies used in The Cove, where small pieces of the footage were shown at various points in the movie, and it was clear that the movie was in part about how the team obtained this footage.

Finally, we discussed the work of the criminal team and their outreach to members of the police force and advocacy groups. This team lacks specific footage of police profiling, and discussed using pop cultural images of profiling (for instance, from the television show Cops) in place of unique footage. Other questions centered on how to display the alienation of a family member: whether it’s done with composition (e.g., in front of a large amount of blank space) or editorially (e.g., in the context of a park where some families are playing and the family in question is not).

Insight into the Basic Narrative Structure of Documentary Films

Today, guest speaker Sharat Raju, director of the film Divided We Fall, offered a discussion of narrative structure and storytelling. The basic structure of any narrative, according to Sharat, goes as follows: there’s a person, this is what the person was up against, this is what happened, and this is the result of those actions. Documentary filmmaking is an extrapolation of that basic structure. Sharat was trained in narrative filmmaking, where the main question was always “whose story is it? who is the main character? who is the story told through?” The most compelling part of making Divided We Fall, said Sharat, was that Valarie was that character through whose journey the story was told.

Valarie pointed out that while filming, it was not contemplated that she would be in front of the camera — this story and Valarie’s specific place in it were constructed later, in the editing room. This is typical of documentaries, where much of the film’s structure is created later.

Sharat then compared Divided We Fall to the Oath, where the first image is of a captured man. The audience feels a need to link to someone who is either the storyteller or someone who we can understand what he/she is going through. With DWF, the film showed Valarie’s family life and past in a way that when she finally went on the road, the audience was with her. The film, then, was the journey: the question of what would happen to the characters and the storyline. You have to keep this basic structure (“where are we going with this?”) in mind, or else the audience will get lost. In The Oath, this was accomplished by using the second *trial* (which has a resolution and a verdict — built-in dramatic tension) as a backbone through which the characters’ more emotional moments made sense. The most important thing is to clearly define the characters and their struggle: what is the end goal? Where are we going to end up? And when you end there, how have the characters been transformed? Character has beginning in stasis, they go on journey, and learn something on it. This isn’t always recreatable in a documentary; you can’t always force a story, either ethically or technically. And note that merely having a simple structure (such as a trial) does not mean that the story itself is simple.

Finally, Sharat showed the class the opening scene from the documentary Hoop Dreams. Hoop Dreams  makes the story structure very clear from the beginning with an “I wish” type story (“I wish I could make it to the NBA”), comparable to the opening “I wish” song of many Disney movies. This opening scene clearly sets forth the narrative structure: they will make it to the NBA or they don’t. And the movie tells this story.

On-the-Ground Planning from a Visual Law Team Member

After a few weeks of tossing around ideas and debating about what kind of legal questions could be best answered on film, September 21 was the day when we all came together to discuss our final choice. Last week, we debated the top two suggestions via conference call, and we had until Sunday night to make up our minds and vote. It was a difficult decision, because both topics were really compelling. One of the key factors in our decision was for what kind of audience we are making the film. In the end, we ended up choosing to do a series of stories on racial profiling and its detrimental effect on minority communities, which we think will have a broader audience.

Tuesday was the day that we finally got off the ground. We brainstormed questions to ask, familiar news stories to investigate further, court cases to read, and experts to contact. We split up into three groups, one to focus on each topic: criminal justice, immigration, and national security. I signed up for the criminal justice group. I was initially interested in doing something on immigration, but when I was listening to another team member’s suggestions for stories in this area, I felt a bit like I could almost see the end product. So I followed my instincts and signed up for that film.

This weekend is Heavy Duty Research Weekend. I’m writing a memo on the legal aspects of racial profiling, while the other two members of this group pound the pavement looking for sources, both experts on the subject and also those who have been affected by it. This has been a bit difficult from my point of view, because I’ve been on my own doing the research, while trying to produce something that represents the direction of the entire team. I have been in touch with them tonight about some of my concerns regarding the first draft of the research memo, and received some helpful feedback.

Simultaneously, I’ve been trying to absorb all the work that they’re doing through update emails. The short amount of time we had to produce the memo and start on the pre-interviews made it reasonable to split the work up like this. Hopefully, they won’ t feel like they missed anything by not doing the research, and I will be able to keep up with everyone they pre-interviewed and what they found. The challenge will be for all of us to “own” both parts of the process, the research and what we can learn from our interviewees.

From both my research and the emails from my partners, I can see that we are going to have several expert voices. However, I am worried about finding the second type of source, the family who has been directly impacted by racial profiling. I can easily understand someone not wanting to talk to us – a few academics with a camera and a list of questions. But I also think that some people may want their story told. We just have to find them.

Speaking of cameras, we were supposed to get camera training on Tuesday, but we ran out of time, so that will have to wait for next week. As an amateur still photographer (undoubtedly prolific but debatably talented) I’m looking forward to learning about the technical side of filmmaking. In fact, I’m looking forward to the rest of the project in general. I’m terribly curious to see where it takes us, and how the film turns out.

Articulating the Legal Argument of Our Film(s)

Cases involving race – and particularly racial profiling cases – are often decided on an individual basis. Courts look to whether or not there was an injury to an individual on the basis of race, and often conclude that there was not – either because race was not a determining factor in the police’s actions, or because the use of race as a factor in the decision to detain or arrest was outweighed by other factors.

One goal of our films is to show that in many of these cases, what the court is seeing on an individual level is, when you pull the camera back, also occurring on a group level. We are trying to make race, groups, and group harms – which are now largely invisible – visible to the courts. We are trying to show that what courts may visualize as a practice only affecting individuals in specific instances is, in fact, affecting larger groups, and that these groups are both disproportionately exposed to the practice and are suffering disproportionate harms as a result of their exposure.

Class Meeting: A Conversation About Copyright and Licensing Schemes

We spent some time on Tuesday discussing, in a rather preliminary sort of way, how we were going to allocate the rights of the films we’re going to make. We hope that the thoughts below will provide a useful starting point for what will likely prove to be an ongoing conversation.

Here are some reasons that we need to talk about rights: What if the group of students working on the Visual Law Project next year wants to make modifications to our films? What if one member of the current group wants to use a film for a commercial purpose? What if Yale wants to use our work for commercial purposes, or make modifications to it? How do we ensure that we receive attribution on the films we create? What if one of the parties we are contracting with to make the films requests some ownership in the resulting product?

We boiled this long list of concerns down to three basic questions about rights and licensing agreements: (1) What’s the relationship between the Visual Law Project and Yale? (2) What’s the relationship among members of the Visual Law Project? (3) What will our relationships with possible subcontractors look like?

Our initial intuition was that Yale would own the films, and project members would be given a perpetual non-exclusive license to the films. But we realized that we might need to negotiate the terms of the contract granting ownership to Yale, and would likely need to negotiate the exact terms of the non-exclusive license that Yale would grant to us.

We also discussed other types of liability and indemnification agreements: who will be responsible if one of us gets hurt? Who will be responsible if we damage a camera? What if the films themselves have the effect of injuring someone?

We have been discussing these and other questions with the administration and general counsel’s office at Yale — resolving such questions about rights has, in a sense, become one of the integral lessons of our practicum.

First Meeting of Yale Visual Law Project

Our first official meeting took place today in New Haven, CT. During a 6-hour retreat, we introduced ourselves to one another, developed an overview of our scholarly production process, and worked through a series of short filming and editing exercises.

Many of our initial ideas and storyboards were sketched out on a chalkboard. Here’s an image of one of those chalkboards: