What does, "Off the record" exactly imply for a documentary film?

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goodgoings

Well-known member
I am shooting a documentary and one of the principle talents says a few times during the interview before speaking about a topic, "This is off the record." I find what he says with this preface very expressive of who this person is - which is really what this film is about (people). Searching on the internet about journalistic reporting, it doesn't seem like he can do anything about it as we never had a discussion and agreement about what, "Off the record" implies. Once when discussing him about this after all the shooting had been finished, he threatened he would sue me if I used those audio segments. Can he actually take legal action against me? Obviously he knew he was being recorded on an audio recorder but said it. I don't feel I am obliged to meet his demand if what he says clearly expresses what he really thinks of the other people in the film.

I feel this is a really important topic for documentary filmmakers as if we are liable for what we should be able to use, it will severely compromise journalistic integrity.

Anyone have any ideas?

Thanks.
 
First of all, a great many films are about 'people'. That's a pretty broad and generic term.

The salient point is this -- he can sue you. Anybody can sue anybody for anything. And if you put out there stuff he told you was "off the record", there's a good chance he WILL sue you. Even if you win in the end, it will cost you time, money, and perhaps do damage to your professional reputation. Is it worth the risk? It wouldn't be for me.
 
David W. Richardson said:
The salient point is this -- he can sue you. Anybody can sue anybody for anything. And if you put out there stuff he told you was "off the record", there's a good chance he WILL sue you. Even if you win in the end, it will cost you time, money, and perhaps do damage to your professional reputation. Is it worth the risk? It wouldn't be for me.
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Unfortunately, you have a point David. It is a conundrum that really hurts us content makers, especially those of us who can't fight it in court because of the "costs" of fighting for creative expression.
 
It depends what country you are working in since not all countries in the world have the same litigation situation as the United States. In my experience in the USA as well as Canada and the several other countries I have worked, you should try to casually get your person or persons to sign a standard release as you are setting up your gear and before you even start talking. Though this is not "bullet proof" it will go a long way to helping should the need arise.
IMHO
 
BrianMurphy said:
...you should try to casually get your person or persons to sign a standard release as you are setting up your gear and before you even start talking. Though this is not "bullet proof" it will go a long way to helping should the need arise.
IMHO
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Yes Brian. I should have done that from the beginning. Now I am concerned if I tried to get a release signed after our discussion, he would be reluctant to sign over complete rights.
 
BrianMurphy said:
It depends what country you are working in since not all countries in the world have the same litigation situation as the United States. In my experience in the USA as well as Canada and the several other countries I have worked, you should try to casually get your person or persons to sign a standard release as you are setting up your gear and before you even start talking. Though this is not "bullet proof" it will go a long way to helping should the need arise.
IMHO
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Releases are good to have, but even a signed release won't stop some people from suing you. A signed release might help you prevail in court, but by that time the damage is done -- you've had to spend money to fight the suit, use your valuable time, and your professional reputation has already been brought into question. If the person suing you has deep pockets, they can make the process drag out until you run out of money to fight with.

You should be clear up-front that anything recorded on-camera and/or audio is fair game, regardless of whether or not they say "off the record". That's not "bullet proof" either, but it's a start.
 
Of course he can sue you. And likely ruin your reputation to the point that you would never be trusted again.

Your ignorance of what "Off the record" means would not stand on its merit. An attorney would simple read several definitions from several dictionaries and you would lose your money and likely never work in this field again.

Do the right thing!!!!!
 
I'm just an independent filmmaker who doesn't have deep pockets, but I also know as a fact this guy doesn't have a cent to his name.
 
goodgoings said:
I'm just an independent filmmaker who doesn't have deep pockets, but I also know as a fact this guy doesn't have a cent to his name.
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That is beside the point.

I did once say to a journalist "can this be be off the record?" and the response was "this is a recorded on the record interview" So I didn't say what I was going to. After we finished he said that is the interview over. SO when I said we are off the record? and he said yes. We discussed the other items. He did not use them directly or attributed to me... they gave him a steer to ask other people other questions and research some other stuff. Therefore I trust him and still give him interviews.

Once it is known that you used "off the record" footage and did not get a release signed because you thought he would not sign it no one is going to talk to you again... End of documentary career.

Also some civil rights type lawyer out to make a name for him/herself might take the case pro-bono for a bit of profile boosting.

Life isn't fair. (and you can quote me :-)
 
goodgoings said:
I'm just an independent filmmaker who doesn't have deep pockets, but I also know as a fact this guy doesn't have a cent to his name.
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He doesn't have money -- no problem. As others have pointed out, he can find an attorney to represent him for free. Or he can represent himself.

You don't have money? That's a problem. Because you can't afford to fight it out in court. And if he wins, he could wind up taking any assets you have. Or even garnish any future earnings until the judgement is paid in full.

If you embarrass and defame him in your video, he's likely to not care about getting money from you -- more likely he will want to destroy you professional, and perhaps personally.

All of this assumes he's a legal, moral, ethical person. If not, he may take much more personal vengeance.

It's a huge risk. Again I ask -- is it worth it to you? What do you GAIN to make it worth the risk of LOSING so much?
 
I think your simple original question, "Can he sue me," has been answered.

if we are liable for what we should be able to use, it will severely compromise journalistic integrity.
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When I hear "journalistic integrity," I think the opposite, like protecting your sources. If the source doesn't want to be quoted, I wouldn't quote them. I don't think of an interview like catching someone doing something out on the street. When you sit down for an interview, you are both engaging in an act of trust. You are trusting him to tell you the truth. He is trusting you to use what he gives you in good faith. For example, editing his words out of order so that he ends up saying "I eat too much pizza" instead of what he really said "I don't think I eat too much pizza" would be an obvious breach. But in my mind so would using stuff he said right after he said, "This is off the record."

goodgoings said:
I don't feel I am obliged to meet his demand if what he says clearly expresses what he really thinks of the other people in the film.
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Are you saying the more honest he is, the less control he has over how his words can be used? That won't stand up in court. It doesn't even seem to be a system of ethics that I have before encountered. What would you want if you were in his place?

I think you're looking at short-term gain for long-term losses.
 
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