Privacy and Documentary Filmmaking

Privacy and Documentary Filmmaking
Journal article by Frederick Wiseman; Social Research, Vol. 68, 2001

Privacy and Documentary Filmmaking
BY FREDERICK WISEMAN
I make documentary films based on unstaged events using the photographs and voices of people who are not actors and who are not asked to do anything other than give their permission to be included in the film. In this paper I will discuss some of the prac- tical problems involved in obtaining their consent and the rela- tionship of the procedures I follow to privacy issues.
First a brief introduction to the technique. My films are shot with a handheld 16 mm camera and a handheld tape recorder and microphone. There is no narration and the events are not staged. Most of the sequences are shot with natural light. Very occasionally it is necessary to augment natural light with a stronger lightbulb and perhaps five times in 35 years with a very powerful light called a sun gun.
Many but not all of my films are about public institutions. They are public in the sense that they are supported by tax money col- lected by public authorities—city, state, or federal—and exist to provide services such as education, health care, welfare, and police to the community. Some of the films are concerned with private institutions and the privacy issues take a somewhat differ- ent form. I will discuss some of the differences later.
I try to obtain permission from the people in the films to use their photographs and voices. Sometimes I receive permission before the sequence is shot, sometimes immediately afterward. If the person photographed objects to his or her picture or voice being used, I do not use it—even if the sequence is shot. Their objection has to be expressed either before, during, or immedi-
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ately after the event in which they participate has been pho- tographed and recorded. I do not obtain written releases but ask for and receive tape-recorded consents. Some people are fright- ened of signing written releases phrased in formal legal language either because they are fearful they won't understand the lan- guage used and may be giving away more than they realized or because of the formal nature of the document.
The method is as follows. I ask the person whose picture and voice I want to record or have already recorded for permission to use their image and voice. I tell them that the tape recorder is recording and that I am going to explain to them the nature of the film I am making, the technique that I use, and where the film will be shown—for example, public television, schools, libraries, colleges, and some theatrical distribution in the United States (with the possibility but not the certainty of a similar distribution in other countries). I explain that often over 100 hours of film will be shot and that only about 3 percent of the material is used in the final film. I tell them that the film will not be finished for at least one year and that other than festival showing, the first pub- lic showing will be on public television in America.
I then ask them if they have any questions and, if they do, respond to their inquiries. I ask if they have understood my explanation and if so if they have any objection' to their picture and voice being used in the film. Ninety-nine point nine percent of the people asked give their permission. When they do give their consent I ask them to give me their names and addresses, which are recorded on the tape. This gives me a contemporane- ous record of the consent of the participants.
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I think that people agree to be in a documentary film for a vari- ety of reasons. Some want others to know of their experience. They hope that their behavior can provide a model of either what
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to do or what not to do. For example, women in a shelter for bat- tered women agreed to be filmed because they wanted other women to know that it was possible to get out of abusive relation- ships and also because they wanted to inform people unfamiliar with domestic violence about the nature of the relationship they were trying to escape. Another possible explanation is related to wanting to share the feeling of competence and a job well done with others. Some people filmed, like the doctors and nurses in a medical intensive care unit, want to participate in informing the public about the life-and-death issues they have to deal with on a daily basis and want to share their method and offer it for cri- tique. The doctors and nurses assumed that most people are unfa- miliar with the questions they have to resolve regularly and that presenting these issues in their complexity would contribute to public knowledge and help others to think more clearly about these questions.
Some people agree to participate out of vanity. Some from indif- ference. In hierarchical organizations like the army and police, par- ticipation may result from an actual order or a need to follow the dictates of a fantasy about the imagined need to comply with the orders of a superior. Some may consent for a combination of all these reasons. As I noted, my experience is that for whatever reason, nearly all the people asked agree to be in the film.
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A sequence from a film I made about the Kansas City, Missouri police in 1968 illustrates the way privacy issues are raised. To make an arrest for prostitution in Kansas City in 1968, the police had to have a price offered and an act. The law made it almost necessary for a vice squad police officer to strip at least to his underpants and get in bed with the woman before, presumably, at the last minute, the arrest was made.
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Such an event took place in a Kansas City hotel. When the vice- squad policeman led the woman from the hotel room she pulled away from him, knocking him over and fleeing. The policeman called other members of the vice squad, who were waiting in a police car in the neighborhood of the hotel. We were also in the vice-squad car. When the officers arrived at the hotel a bellhop informed them that the woman had fled to the basement. The police went to the basement looking for her. The basement was dark and I had available a powerful light called a sun gun; it would have been impossible to shoot any film otherwise. The police found the woman hiding under a pile of old furniture, dragged her out from beneath it, and then one of the policeman began to strangle her. Before she passed out the policeman stopped strangling her. The woman, gasping for breath, said to the policeman that he was trying to strangle her. His reply was that she was just imagining it. But it was clear from the film that the policeman was strangling the woman.
The sequence I described was shot on 16 mm film and a still photograph from the film accompanies this article. Another part of the same sequence included a visit by one of the vice-squad offi- cers to the hotel room of the women, where he examines her per- sonal belongings and takes possession of her address book. He looks through it and asks her if she is friendly with other women whom he says are prostitutes and whose names he has found in the address book. She is eventually taken to the police station and booked for prostitution. I asked the woman for permission when she was in the police car on the way to the station and followed the procedure I outlined earlier. The film, Law and Order, was shown on public television with an edited version of the sequence I have described.
Up to this point I have emphasized the consent I received from the woman who was arrested. However, there were others whose permission was needed. I had to have the permission of the chief of police in Kansas City to ride with the police and record their day-to-day activities. I also needed the consent of the individual
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From Law and Order
policemen and policewomen. In the six weeks I was with the Kansas City Police, no police officer ever objected to being pho- tographed and recorded. I did not take the same care to obtain their individual consents that I did with people they came in con- tact with and/or arrested. I knew that a letter had come from the chief to the captain in charge of the precinct where I worked ask- ing that all the officers in the precinct cooperate with the filming. Since the police are a hierarchical organization, the officers com- plied with the orders of the chief. It was impossible for me to know if they individually had strong objections. I could only assume that if they did not want to be filmed they would have found a way to avoid my riding in the police car with them. I also assumed that they were sizing me up in the same way I felt I was trying to form an opinion about them. Despite the hierarchical nature of the department, if the police felt that I could not be trusted, they would have found a way not to cooperate either by presenting subtle indirect obstacles or by going to the chief and saying that the film crew was interfering with their work.
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Police activity in a democratic society is supposed to be trans- parent and any comment about police work is thought to be pro- tected by the First Amendment. It would be impossible, however, to obtain police cooperation for the kind of films that I make if they did not want to participate, despite the existence of the First Amendment. The courts have generally ruled that when a conflict emerges between the First Amendment and the right to privacy, the protection of the First Amendment is the dominant value. To obtain the permission of the individual officers it was necessary to talk with them about matters of common interest with the hope that they would come to the conclusion that I could be trusted to accurately report on their work. I also had to be sure that the con- versation concerned genuine areas of shared interest, otherwise I risked appearing to be condescending.
A strong argument can be made that in the police-prostitute sequence described, it is not necessary to have the formal consent of any of the participants. Certainly not of the police and perhaps not even the woman. Suppose, for example, that the woman did not give her consent or that she gave it but did not fully under- stand the implications of showing this aspect of her life on public television. Does that mean the sequence cannot be broadcast and also shown in other forms, such as videocassette, laser, or DVD? My view is that if the institution is public, in the sense indicated earlier, neither a tape-recorded consent nor a written release is necessary and that this police sequence and any others involving work performed or activities that take place in public institutions are fully protected by the First Amendment. In these situations the individual right to privacy is less important than the values expressed in the phrase, "the public's right to know."
Despite this absolutist First Amendment view with respect to presenting on film the daily activities at public institutions, I try— even though I am not legally obligated to do so—to obtain the tape-recorded consents because I believe it is the ethical and fair
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thing to do. The fact that people readily give their consent does* not necessarily mean that they understand the implications regarding the use of the material. One could argue that the only valid consent would be consent obtained only after participants had seen the final film and could see and hear how the sequences in which they had participated were edited and how they were placed in relation to other sequences.
This would be completely impractical for several reasons. It would give the participants individually and collectively a right to veto part or all of the final film. It would be impossible to find fund- ing for the film if the funding source knew that at the end of the editing the participants could prevent the film from being shown. Also, with some subjects it would be impossible 12 to 18 months after the filming to find all the people. I believe it is necessary to act on the same assumption that operates in other areas of the law and in medicine and indeed in most aspects of our lives. The assump- tion is that people who fall within the range of the various legal def- initions of competency have the ability to understand, evaluate, and act on a request to participate in a documentary film and that they understand the implications of their choice and decision.
The situation is different with respect to activities in private institutions. In these institutions I try to carefully obtain tape- recorded consents from the participants. While retaining some force, the "transparency" argument applicable to public places cannot so easily be applied to private institutions unless one can convincingly assert their "de facto" public role.
In a democratic society the need for the citizens of a commu- nity to have access to information about the way their public insti- tutions function takes precedence over individual privacy rights. The issue goes well beyond the need to protect the right of docu- mentary filmmakers to work. If it were otherwise, society runs the risk of the state closing down the sources of information necessary for citizens to make decisions about the way they want to live.