What Few Know About Documentary Film

Some Experiences Capturing Filmic Realism

In the past few months, I’ve had some peculiar experiences concerning setting up for film situations. You may already know that I make documentary films, and, unlike many, I prefer to take a long time with my work so that, at the end of the day, what is produced can be the best that I could really have done. I’ve worked on films for a long time and still may not be satisfied with all the elements. I refer not only to what exists within the film itself but also to the human factors behind a production, which for me are much more important because they are karma. Sometimes the unexpected happens because many people know neither how a film is made nor the difference between narrative films (which is to say, films that are based on fiction) versus documentaries. Being uninformed about this distinction is natural; it is something we may expect because the public’s role is to see film, not to produce it.

But in the interest of understanding why certain films are made while others are not, we might take a moment to explore how the inconceivably bizarre process of film production affects everything we in the film industry make and, by consequence, everything that you in the public sphere see, regardless of what kind of screen it may be projected onto: a theater, TV, or mobile device. It bears mentioning that documentaries are much more difficult to make than narrative (i.e., fiction) films, and we will see why presently.

To this end, here are five principles informing what it takes to make worthwhile documentaries.

1. The rules of the game are not the game itself

In documentaries, several tenets always apply, the principal one being that, as filmmakers, we have very little control over matters that directors and producers in narrative or fiction films are able to control rather neatly. By contrast, in a fiction film, directors know ahead of time what the actors are going to say on camera (since there is a shooting script), they can tell the actors how to say it, and they can have the actors repeat the act, take after take, until the director get what he or she wants.

In documentary films, we have almost none of this control. When we roll the camera and start recording, we can ask our best, most well-prepared questions to the person in front of our lens, but they can answer however they want to — or not at all. We have no idea what they’re going to say, nor can we ask them to repeat it in the same way again. The narrative director’s job is to create fictional moments, while the documentary director’s priority is to capture real moments. I prefer the real, so I’ve never directed anything other than documentaries.

In narrative films, the director directs the cast but not the production, which is controlled by producers and often investors who are labeled in the credits as Executive Producers. In documentaries, the director often directs the overall production but not the speakers themselves, as we have noted.

These are sobering facts to bear in mind when we see a documentary — every moment is real, nothing was repeated, and ironically, much that was probably memorable may have happened when the cameras weren’t rolling. I worked with a young producer once, whose first experience was a shoot at the house of a well-known person, the Pulitzer-prize winning poet Frank Bidart. Prior to the interview, I covered all the questions that I was to ask, and everyone knew how long we would have to set up, capture, and leave. As we arrived, the crew began to set up equipment, and in her enthusiasm, our young colleague started asking the interview questions to the subject of our shoot. He excitedly answered them all, and by the time I realized what had happened, I realized he would answer differently on camera, since he had already given his best enthusiasm to her. I chose to come up with entirely new questions at that moment in order to capture real, new thoughts, rather than repeated ones:

Fortunately, Frank is possessed of a gracious and thoughtful mind, and spoke subtly of how the poetic imagination meets mundane reality.

This shoot proved something else: documentary directors often have no control of setting. We filmed the exterior approach to Frank’s home, but once inside, there was no room to set up any film equipment – not even a tripod – because surprisingly, he owns the largest digital film collection I have ever seen, and with DVDs stacked up in  wall-to-wall columns, we had to think quickly. I set up one of our cameras to rest on one such column and feed directly to the screen he uses to watch films. That way, when we capture Frank speaking of the dual reality of poetic and real worlds, we see both sides of his face as an index to his thinking. He is also a Gemini, so his sign, containing the astrological twins, is reflected in that visual way as well. The truth, as we see, is that Frank has transcended this duality, and speaks of how he dislikes poetic language that becomes a “screen” for truth. Perhaps this conversation was meta on several levels.

One of the more mundane and mystical aspects of film is the presence of money. Money is indeed a factor in films, but not the factor most people imagine. Since documentaries are rarely popular enough to appear in theaters, they don’t attract investors in the same way as, say, a film featuring Leonardo DiCaprio might. Leo will be paid $20 million for his role in the film, but his name and performance are automatic marketing for the film, and so he will bring much more than that amount to the production in revenues. That film will not sell to a big name studio — rather, the studio itself will have produced the film, which means that financing came through the studio, which keeps total control of the property (as films are called here in Hollywood). Since virtually no documentary can invest or recoup that kind of money, docs are made on a smaller budget, typically under $1 million, often a fraction of that. Very little can be done with that budget, by comparison with narrative films, in which the director has several assistants and there is a huge crew to do every task imaginable behind the camera.

For documentary films, there are, however, ways around these challenges. One way is to get a production studio to commission the entire work so that it brings the money to the production, selects the crew, and exercises complete control over the material that it is going to receive so that it can put it out on its streaming platform. When a studio like Netflix commissions the work, it brings, holds, and controls the money. It hires anyone it wants to. There is no money to raise because the studio is doing what is called work for hire, and the director, like every other crew member, is essentially a temporary employee of the production.

Virtually every production that viewers see from a studio like Netflix has been purchased by the studio itself or commissioned from the beginning by its production staff. This sounds like freedom: the money is already there! What could go wrong?


2. Bend the rules of the industry, not of reality

One problem in much film is a lack of freedom, depending on where you work. In a Netflix-commissioned production (and this is true of all studio work), every crew member, including the director, must follow whatever decision the studio executives make. The more money the production is given, the less freedom the director is afforded, because with larger investments, the studio is less inclined to “take chances.”

Clearly, there are two extremes here. On one end of this continuum, being the director of a documentary, you have very little control over what subjects will do and say (they will take minimal direction, but too much, and the ineffable magic of spontaneity is lost). On the other end, to do work for studios (which nicely fund your meals) means giving up control of many or most of your decisions Either way, there is truly very little latitude in most documentary productions. Documentary films comprise the most difficult and least financially rewarding of all of the sectors of the film industry. I know of people who have worked in this field who have never made any money and became reluctant converts to other professions.

My own work around all of this follows a slightly different model, designed so that I don’t have to go crazy working for impossible standards or reporting to the decisions of external parties. Years ago, I began working not only in academia but also in producing the technological infrastructure for a separate business that was run by my family, myself included. I own a significant percentage of that business, so because of this, I’m able to have that company fund my research, filming, and post-production of whatever topic or subject I choose. I don’t have to deliver anything on deadline; I don’t have to ask for approval; I don’t have to wait for anyone. If I choose to wait or suspend production, or if I want to film any topic, subject, person, or location, I can do so at any time without any permission. I consciously went into this industry as an extension of my art theory writing and editing, thinking that in many cases, it is better to show than to write, but preserving my intellectual freedom is above all what led to my decision eleven years ago.

This does not save my work from the accounting and legal requirements that must be fulfilled for every production to become acquirable by a distribution company. For this reason, I still have to engage in creating the infrastructure that allows legal and insurance coverage for my films, just like everyone else. And this is a cost that is not borne by anyone else, so my funding company has to assume all the risk, but it’s essentially, if we think about it, paying for me to have my freedom.

There is no equivalent to this in any other creative field. If a musician wants to release a track or even an entire album of music, he could do so, and to release it, he does not need to have it insured by a company in case it sounds like someone else’s music. Yet in film, this is exactly what we must do: buy insurance for the distributor who will acquire our film. It’s called errors and omissions insurance (aka, E&O) , and costs anywhere from $5,000 to $20,000 or more. It must be secured only after certain entertainment attorneys look over the film and decide, using a certain spreadsheet protocol called a clearance log, that the film is original and poses no legal issues to the distributor who will eventually buy the film.


3. The Production is not the Content

If you’re smart, you realize that the cost of any production is not related to the quality of its content (as proved in the final section of this essay). You can make a great film on a cell phone. The production will look grainy, but the content will prevail and reach the hearts of the viewers. This is what happens in the documentary Amy, about the tragic life of singer Amy Winehouse. Most of the material comes from cell phones: videos captured by friends show Amy in her most real moments and during her evolution as both a performer and person. Not even the best camera crew or director could have filmed with such intimacy. Looking at the trailer, we can see how low the video resolution is, and despite this, how real she becomes to us:

So, the real magic of film is not about spending millions on crew, equipment, or locations. What you need in documentary films is, as we said, to capture real moments. And the film Amy does that. No viewer cares about anything else. If the film is real, then the cost is irrelevant, and a good director will find a way to show the intimacy of a subject without spending a lot of money. I showed my last feature length documentary to a producer, who refused to believe that I made that movie for less than half a million dollars.

And so, the amount of money is not related to the quality of the content. More than that, making movies is paradoxical when it comes to finance because, as Martin Scorsese says, “In film, you have to get the money first.” This sounds reasonable, but in fact, it is not a natural way to approach investments. If you want to buy a car, you go to the dealer, and the car is visibly there — you can see it. The product that is to be sold and delivered exists before you buy it. However, in movies, since we have to secure the financing first, investors have to pay for something they haven’t seen and which doesn’t even exist!

I have never once asked for money for a movie, which is an extremely rare situation in feature-length filmmaking. Many times, I’ve been told that it’s foolish not to rely on OPM – other people’s money – when making a movie. However, to me, it’s more foolish to use other people’s money to create a movie where the subjects are not actors. Imagine, for example, that someone in your film refuses to cooperate in front of your cameras. If something goes wrong, the producer has to go back to the investors and tell them that their money is gone and this is the best they can come up with. In my view, that is an unacceptably tenuous position to put oneself in. But in film, anything can and usually does happen. That’s why certain companies exist to sell what are known as completion bonds. Film completion bonds are agreements between three parties: the producers, the investors, and a film bond company. The company guarantees that the film will be completed on time and on budget. Completion bonds are a form of insurance, since we can imagine how messy any production or filming could get.

Many people wishing to make a film can encounter unexpected legal landmines even before any film is made. Someone I know, let us call him Lucius, had a script he wanted to produce (everybody seems to carry a script around Hollywood). As it happens, Lucius ran into Stephen Spielberg’s assistant in a store, and he described his script plot to her. Listening to the story, the assistant imagined that Stephen could love it. She kindly arranged for Lucius to come to Amblin Entertainment’s offices and discuss it with Stephen directly. As soon as Lucius approached Spielberg’s offices at the appointed time, he was met at the gate by two lawyers who advised him that he needed to sign away some rights before Spielberg looked at it. What was in that legal document? The stipulation presented to Lucius was that he must agree not to sue Spielberg’s production company if they make a film that resembles his script. Notionally, Spielber could have been considering a similar idea beforehand, and if produced, Lucius might think that his plot was stolen. So by signing the document at Amblin’s gates, Lucius agrees to share his story, but if they make a film about it, he has no protection against plagiarism. Obviously, whether a producer was already considering a story or not is something that could be proved in court with emails, memos, and manuscripts, so why make him sign away his rights up front? Even if they weren’t considering a similar story beforehand, he has no recourse to protect his work thereafter.

To be clear, Spielberg is not a bad chap; Quincy Jones told me the best story about how Stephen protected him in a film (this is for another time). My point is that, out of fear, everybody is now protecting themselves and must impose odd conditions on everyone else. It could either be a non-disclosure agreement imposed by the owners of the story, trying to prevent anyone who reads it from sharing it, or a disclaimer like the one we just saw, where the story can be revealed without protection for the writer. It’s a control game from either side.

If it isn’t already hard enough to make a production, it’s much harder to realize how protectively this industry works. To be sure, 100% of everything in Hollywood becomes controlled by lawyers, if you let them do so.


4. Reflect on the Rituals of Release

To make this clearer, I will outline what I have to do when I finish a film. I have to create what’s called a clearance log. This log is an inventory, frame by frame, scene by scene, shot by shot, of absolutely everything in the film, listed in a spreadsheet from beginning to end, along with minute and second of appearance and length of shot. The source must be listed, permission must be acquired in writing, or if it is in the public domain, then the source has to be listed, or if neither, then we have to make a plea for fair use, which means that we can use it under certain circumstances as long as we document it and are subjected to what is called transformative use. Transformative use means that you are using footage that you do not have permission to use, but if you’re only using it for a few seconds, you can quote the material as long as you’re going to change the viewer’s perspective of it in some way. For example, you might record a voice commentary over the footage, which then produces a different interpretation from how the original material was intended to be seen. Without transformative use, using any material that’s not licensed is like copying the material, and this is forbidden without permission.

For instance, I cannot copy footage from a Star Wars movie, but I can copy a few seconds of it, and show it to the viewer with a voiceover that says something like, “In this particular scene, we see that the lighting has been shifted strongly to the right in order to emphasize shadows and therefore increase the dramatic intention of the director in the film.” The voiceover comment will change the scene from what the original movie intended it to be, into something new and different. If you use a few seconds of material with transformative use in that manner, then you are allowed much latitude in your film, especially in documentaries. Richard Abramowitz once told me that he was working on promoting several films in which 100% of their footage was unlicensed, which surprised me. One of these was Room 237, which is based entirely on material taken from Stanley Kubrick’s horror classic, The Shining:

Another was Escape from Tomorrow, billed as “the most provocative film from the 2013 Sundance Film Festival, ESCAPE FROM TOMORROW should not exist, and yet it does.” Filmed using guerrilla filmmaking techniques, the movie was shot at the Walt Disney World Resort without securing permission from the Walt Disney Company.

For films like these, there is a great risk of lawsuits for the use of unlicensed material, and so, as mentioned earlier, to avoid these, the clearance log is an inventory of every shot and what permission has been given for that use inside your film.

But it doesn’t end there. You then have to take that clearance log to certain entertainment lawyers that are authorized to write what is called an opinion letter. What is this?

If these attorneys approve the clearance log when they review the film, then they write the opinion letter; otherwise, they point out certain places in your film where you have to make edits because you don’t have sufficient permission, etc.

This process goes back and forth until the very last portion of your film, including the credits, has been authorized in some way by the opinion of the attorneys.

You then take that clearance log and approach different insurance companies so that they can sell you insurance to protect the film for about $1 to 2 million against such lawsuits. This is intended to protect both yourself and anyone who purchases your film for distribution. That is, with that opinion letter, and the insurance, which is called errors and omissions insurance (also known as “E&O”), a distributor can now acquire the film. The clearance log obviously takes time that needs to be paid to some assistant or person, but that is the smallest of the expenses. There are also companies that offer these services, but the costs are evident for global rights, as the Clearance Lab provides:

Global film clearance package cost, The Clearance Lab

Separately, hiring attorneys to review the clearance log and securing an opinion letter will usually cost around $5,000, and the insurance company policy will cost between $5,000 and $10,000. By the way, you cannot send your film directly to a distributor (this has begun to change recently). Instead, you should retain what’s called a sales agent and pay him $5,000 and a percentage of your film so that he can contact them directly and get them to watch the film.

So when you stop filming, the minimum expense is another $20,000. This is the absolute rock bottom and most minimum version of a legal distribution workflow for your film. I’ve never seen anyone do this for $20,000.

Alternatively, you can just turn your camera on and put a film onto YouTube, and that will cost nothing, although YouTube might give you a strike if you’re copying music that is copyrighted, for example. With several strikes, you can lose your account privileges on YouTube. But in general, this seems to be the way that a lot of things are going to go: people creating low-end film that is posted up on YouTube, and hopefully they will monetize a few pennies from it that way. That’s why there’s so much content there, which is a little bit better and longer than some on TiTok but not as good as what you might see on television and certainly not anywhere near what you might see in theaters.


5. Find magic; don’t invent it

It is easy to stretch the apparent truth captured in many documentaries. One famous director released a well-known documentary that captured quite a bit of magic between a man and an animal in the wild. The film has a tragic ending. I do admire this director, who has many great films to his credit. Perhaps I am more an admirer of his persistence than of his productions, for, as we know already, the content is not the production. Curiously, while I was on another project, I found that this director had approached an individual some years prior to releasing his own documentary on the man in the wild. This other man, contacted prior to making that film, lives in the wild and is also familiar with animals in their natural habitat. As it happens, this is the man who was intended to have been the original subject of that film. But that film didn’t happen because I’m told that the director, who I will call John, approached this individual and, in proposing the idea of a documentary about the man’s life in the wild, advised the man about how the final film would look: the director wanted to film scenes that would look poignant and powerful on film. I am told that the man rejected all these ideas, not only because they were not part of the natural environment or of his symbiotic relationship with these animals, but also because they were much too dangerous. So the production didn’t happen, but the idea remained, and John later made the documentary featuring someone else, that other man who was less expert in the wild and who was willing to take those risks and perform as directed, to unfortunately tragic effect. People watching that film today have no idea of this context, but it’s bad karma.

Now, let us turn to some of my more peculiar experiences, with which I opened this essay. Actually, they’re not so unusual, but rather, perhaps too usual. Most often, they include random requests from interesting people suggesting that a documentary film be done about them. It is true that many stories and events can be transposed into vivid accounts within the medium of film. I look not for unusual stories but instead for unusual patterns of experience. Why? Let us imagine two films. In one, a man can get up in the morning and go to a cafe—that is a banal story. But in the other film, he is on his way to the cafe, he runs into many people – neighbors, friends, associates, acquaintances, relatives, children, and even animals—interacting with each other in a genuine way, then almost any confident, sensitive filmmaker could transform that procession of encounters into a touching, relatable film. First, find where the magic is happening, and then get out of its way.

This is how many Iranian filmmakers have made some of the greatest works. Consider Jafar Panahi’s Taxi, a film based entirely on the realism of chance encounters that took place in a taxi one afternoon. Panahi’s films have typically been extremely low budget productions, often made with less than five people and a skeleton crew, but taking “liberties” that, while normal for any civilized country, have insulted the fanatically repressive regime in Iran, where he lives. It seems that with each successive film, he and the Iranian government have been defying each other, such that he was prohibited from making films and presumably took to driving a taxi—and making a film about it. Don’t take this seeming documentary for granted, as Panahi’s style is to walk the line between truth and appearance – that is all I shall say about this classic work.

More touching is Panahi’s debut film, The White Balloon. While not a documentary, it shows the importance of realism in film, which is, I suppose, what I’ve been circling around in this essay. Here is an unrestored cut of the film, put online by someone, and without subtitles, but click on the automatic captions, and they work perfectly:

The young protagonist in this film is today a neuroscientist in Canada. Rarely does one predict what will come from film.

And so, denying everything I’ve just written concerning the complexity of filmmaking, let us realize that, in the final analysis, all it really takes to make a memorable film is a set of memorable encounters. If you live among these, you know where to find me.

Until next time, my friends.

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