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Screen Edge 2017: When Subjects Go Rogue

What if your doco subject seeks an injunction against your film – and succeeds? Directors Annie Goldson and Hollie Fifer talked with litigation lawyer David Bigio QC about what to do when plans go awry.

While Annie Goldson’s subject in her latest film did not “go rogue” on her – some would argue Kim Dotcom simply is one – one of Hollie Fifer’s main subjects certainly did.

Writer/director Hollie was in Toronto for the premiere of her doco The Opposition when one of the film’s subjects, Dame Carol Kidu, gained a temporary injunction against use of all footage of her. Kidu was also suing for an injunction against use of Fifer’s footage of human rights abuses, even though Kidu was not directly involved in the latter.

The Opposition depicts the struggle of a small residential community in Papua New Guineau against the destruction of their homes to make way for a luxury hotel. The police rolled in with bulldozers… and the scandal went all the way to the Supreme Court.

Hollie found out about the injunction by an email from her colleague in Australia. However she was able to screen the rest of the film without the injuncted footage, so she rapidly created a version with blackouts, subtitles, and voice-over describing what was happening. She had to get it approved by the judge, or she could have been charged with contempt of court and possibly sent to gaol.

Goldson suggested, “Dame Carol was foolish. The injunction just guaranteed more publicity.”

Australian-born Dame Carol was at first a fearless human rights campaigner herself, who became leader of the opposition in PNG’s parliament. During the making of the film she performed a 180-degree flip. She suddenly quit politics, and accepted a job with the development company she had previously protested against – gaining a big increase in personal income. She publicly apologized publicly for her previous statements! Money trumping morality, it appeared to many.

In the court case, both Dame Carol and Hollie were cross-examined. Dame Carol was first. She claimed that Hollie had said she was a student and the film would not be released publicly. Yet she had signed a release form before filming. She then claimed that this understanding came from a personal chat held privately. But she couldn’t recall when or how this chat had taken place. Then she claimed that she was naive regarding documentary making and media. An experienced politician, the oppositon party leader, naive regarding media? More importantly perhaps, a documentary about Dame Carol – featuring her – had been made previously.

Ironically, Hollie and Dame Carol were previously good friends. Hollie lived in her home for a month at one point. Interestingly, after the job switch, Dame Carol still talked to her. For Hollie it was important that Dame Carol had the right of reply in the film, with at least as many opportunities as other people.

The moderator of the session, Bigio, explained with admirable clarity the legalities of the situation.

For an injunction to be granted only requires a demonstrably arguable case, not necessarily a provable one. The other factor in granting an injunction is “balance of convenience”, the question being would an injunction be a matter of serious inconvenience to one party compared to the other?

How is “convenience” to be measured – and inconvenience to whom? Doc Edge scheduled Fifer’s film in last year’s festival, then was forced to withdraw it. Now that the case has been resolved in the Supreme Court in Fifer’s favour, the film was able to be seen at this year’s festival.

While The Opposition is Hollie Fifer’s first feature, Annie Goldson has a track record of 15 films as producer, and 11 as director. She’s won 50 awards, including being made an Officer of the New Zealand Order of Merit for her services to the film industry.

But that track record doesn’t insure her against morality issues, especially with the films like her An Island Calling. That film explored the murder of the leader of the Fijian Red Cross and his partner, a crime committed by a former lover who, it appeared, had become obsessed with religious guilt.

Goldson decided with An Island Calling that all she could do was to tell the truth – but what is “truth”? As well as dealing with sensitive issues like homosexuality in a conservative culture, it also exposed police bias and possible corruption…

She asserts that to make a balanced film is an achievement. Documentaries are often either hagiography or a hatchet job, such as recent films about Edward Snowden and Julian Assange.

In one film of her films, Goldson was tempted to add a credit saying, “This film was made despite the following people…”

The stories she chooses for her films are usually triggered by something she reads, something that then won’t get out of her head. There is always depth beyond what has been read. 

“You never know if you’ve got a film when you’re shooting a doco. The subject/director relationship is critical. There is a past history of documentaries exploiting their subjects.” Sometimes emotion overwhelms a participant, and sometimes the docomaker!

For Goldson’s film about Kim Dotcom, Caught in the Web, it would appear he thought it better to participate than not. Fortunately, her subject recognised that the film needed to be independent, and how important it was that it to be seen to be so. It no doubt helped that Dotcom understood that Annie was genuinely interested in the web, file-sharing and politics.

Caught in the Web will screen in this year’s NZIFF, with a general release planned for soon after. Goldson hopes that it will open in as many cinemas as possible – since the film is bound to be pirated!

When it comes to the signing of release forms, Annie notes that the subject has a lot of control. Many documentary makers strongly advise getting release forms signed before doing any interviews. But Annie does not usually get a release signed until after the main interviews. It would seem weird to her to do that beforehand.

She also notes that the subject always has something that he or she wants to get out of the making of a film.

Annie usually shows her subjects a late rough cut. Not her four-hour version, but one much closer to completion – but still with room for further editing. She will say it’s as a fact check, but will also ask if there is anything the subject is unhappy with. She feels strongly that there is a need to look after people, to get this aspect right. Therefore she does give her subjects this opportunity.

Nevertheless she always says, “I will have editorial control, but if anything is a problem we can talk.” She does not give a subject veto rights. It’s important to state that it’s your film, not a collaborative venture.

When it comes to documents like release forms, it is not uncommon to have the sentence, “This agreement supercedes any previous ones,” within an agreement. This is not intended to be devious; rather it is to prevent people cherry-picking from different versions. Goldson gives her subjects time to read and comprehend the release form. She also insists on clarity of expression within such documents.

With her latest film Goldson could potentially be sued by Kim Dotcom, John Key, American spy organisations, or the Five Eyes group, amongst others. Bigio noted she must be doing something right!

“All my characters thought that they came across the best!” Fifer observed. Goldson replied, “Deluded to the end!”

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