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

goodgoings said:
Not much of a reaction. Maybe brows raised.
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So you didn't give any indication that it was still on the record...... You did not contradict him. I am not a lawyer but I think you are in a difficult position. Certainly an expensive one if any legal action is taken. Also your career as a documentary film maker is probably over. Or at least any work where the subject in front of the camera needs to be able to trust the cameraman.
 
Talk "off the record" is something not meant to end up in the production. It can be things like due to politics the person can't express certain things about out spoken. It's more like a trust between journalists and the person and it is a very good thing to value and keep within the production team. I encounter this almost every week.
 
I've had lots of instances where an interviewee has said something "off the record". Those comments have always stayed "off the record" though if there was a significant public interest reason for using the comments (like a murderer admitting a crime) I'd have no hesitation in using them.
 
Off the record means whatever you two agreed it means before the interview. Once the interview starts, it gets messy. Clearly, he intends that you not reveal what he said off the record. As a journalist, the tradition has been to honor a sources wishes to be anonymous, off the record, background information and the like. Without this code of honor, reporters would have a great deal of difficulty getting information about what is happening. You hear it all the time on the news about un-named sources and so forth. I expect the person you interviewed expects you to stick with that tradition.

The courts do not recognize this traditional journalistic code of honor.

Here's what NYU School of Journalism has to say about it in their student handbook:

"On the record, on background, not for attribution and off the record: These are prearranged agreements between a reporter and a source, which govern how specific information can be used. These deals must be agreed to beforehand, never after. A source can't say something then claim it was "off the record." That's too late. When dealing with individuals who are not experienced in talking with reporters, journalists should make sure ground rules and potential consequences are clear, and then perhaps offer leeway. Of course, if the information isn't integral to the story, a reporter can agree not to use it. If you talk to five journalists, you'll likely get five different definitions for these terms. That's why it's important that a reporter clarify the use of these terms with a source before making any agreements."

You have to decide if you are going to honor your interviewer's wishes or not. Then it's his turn and then perhaps the courts turn.
 
Kind of a persistent way of getting some, though not necessarily identical, comments on the record is to rephrase the question and see if the interviewee still takes the same stance. Pushing forward without regard to the interviewee feelings won't help. From a psychological perspective, when one goes "off the record", he is still conveying information he thinks you should have. He just doesn't want to be known as the one who has given it to you.

A journalist will still publish what he thinks is relevant to his piece. He just won't name names or, at worst, won't directly connect names to the information presented.
 
videosilva said:
This thread looked like it would have been educational. All I read was opinions and not fact. Opinions are like assholes everyone has one.
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If the O.P. wants fact, then he should ask his question to a qualified attorney, not to a board of more or less strangers. Asking here will always get opinion.
 
"Off the record" means the person does not want the information attributed to him. If he says that in front of a running camera, he is an idiot.

As far as I know it is not a legal issue, but it is an ethical one; except in the case of some crimes where you become an "accomplice after the fact" if you do not notify the police. Best way to deal with it is to tell them before shooting, "anything said in front of the camera is ON THE RECORD".
 
A few things from my "not a lawyer but have dealt with this an think I've learned a thing or two" angle. For entertainment purposes only. :-)

Sure, anyone can sue anyone else for just about anything. In the documentary world, that's what Errors and Omissions (E&O) insurance is for. If you want to sell/license your documentary to a broadcaster or biggish web entity, or something, you'll need E&O insurance and to get that you'll need several things including in most cases signed releases. And you'll need to disclose and resolve the "off the record" issue.

The NYU definition Paul quotes in post #25 above looks similar to what I was taught and have followed in some of my journalism work (mostly written, some newsmag, some court related, some DC gov/lobbyist...lots of lawyers and other media-savvy people). The breakdown I've followed involves common agreement amongst both parties, but if you're say talking to a lawyer during a break in a case, or two an assistant to a government official there are common assumed meanings that seem useful:

1) Off The Record
Meaningless, yet in theory totally blocking. If someone says "off the record, I killed the guy" well you can probably get away with using the quote. But if a cook says of another cook, "off the record, I hate that guys cooking" using that (especially without a release) might seem sexy, might get you sued, and probably would hinder your getting E&O insurance (or at least getting affordable E&O) or a broadcast... And if you don't disclose the off-the-recordness to your insurer or bcaster, there might be a clause in your contract that says something like "in this case, I admit I'm screwed and have no protection from you guys...and maybe you can sue me too." Media savvy people rarely use that term with journalists they know are experienced since there will be pushback. Regular people use it all the time.

2) Not For Attribution
Not so common in documentaries, moreso in journalism. "A high-ranking official at the FCC said today..." Nice way to get sexy quotes, and a good journalist will weigh what sort of spin is going on, especially with a source who doesn't want to be named. I bad journalist won't care because they got the sexy quote.

3) On Background
Lawyers and government people love this. Also not so much a doc issue (cause they won't go on background if cameras are rolling), but say you haven't covered criminal courts a bunch and something seemingly significant happens...During a break, you probably can't get one of the lawyers on the case to be clear about the strategy or about what will happen next, but you might be able to get them to give you a fairly straight answer "on background" that helps you understand what the hell is going on. It's sort of a quick tutorial on a topic from an informed but not totally trustworthy source (though after confirming a few things and seeing who's background info holds up, you can more quickly evaluate the straight-dope vs bs-spin ratio).

With all this stuff, especially Off The Record, you need to balance how experienced the person is with being covered by the media, how much of a public figure they are, and mostly what they really think these terms mean. Oh, I should add a couple times for print, I've had people reach over and turn off my audio recorder when they wanted to say something that they could deny...but these were not matters of vital public interest, so I got the drift and put down my pen for a bit...listened, discussed the whole on/off record thing, and rather quickly said, "I'm going to turn on my recorder now."

So for you, Mr. Goings (the OP), I'd think it's worthwhile to go back to the guy and say something like, "you know the thing you said was off the record? It's a really great statement, can I use the original statement or can we talk on the record about that again? For these reasons, I think going on the record would be a good thing to do."

And if you can't get that and they think "off the record' means you should act like they never said it, maybe consider their statement "on background" and ask them later in an OTF or sit-down interview to respond to the same topic. If they go all "off the record" again ask them why they don't want to talk about this. Figure out how close to their hurt point you can get them to go on the record. Balance that with having them bolt....you know the dance.

At least let their "off the record" stuff inform how you shape your film.

And get a release form. If you think they won't sign, cajole. If they still won't, maybe it's better to know now rather than a few more weeks in production.

I'm not a lawyer, but I've spoken with several lawyers about this stuff, and with some great hardcore journalists and documentary filmmakers. And as with most things I followed a favorite aphorism:

Good judgment comes from experience
Experience comes from bad judgment.


Good luck!
 
The original question is not that complicated because this is all after the fact. You have already conducted the interview and this has already happened.

Can he sue? Yes. You didn't get a release, so using anything at all in any way can effectively be a legal battle. You have not gotten the rights to use his likeness, whether it be his image, his statements or the sound of his voice. There are journalistic exceptions and the laws vary in different countries, but you pretty much didn't follow them. That's the end of question number one.

Question two, do I have the journalistic right to use material he deemed "off the record"? I don't know, do you? This is not a legal question, it is an ethical one. So that makes it a question of your personal ethics. If I were you in that situation, when he said live on camera "This is off the record," I would have interjected and said "No, the camera is running and it is on the record." Then he would have the option of asking you to turn it off or of not saying what he was planning to say. But you didn't do that or anything like it, so this is now too late, isn't it?

The question isn't really if you have the right to use material a subject deemed off the record, the question is whether you made sure that the subject understood that if he said it you planned to use it. You can not lay the responsibility at the feet of the subject here -- the moment that the person stated "the following is of the record," if you did not correct him then you are in the wrong. I would state that morally you are wrong, journalistically you are wrong, and while I am not a lawyer I suspect that under any common sense understanding of a verbal agreement where there is no written agreement in place that would supersede it (that's what a release form is), you are also legally wrong. So that makes you wrong, wrong and wrong.
 
Agree with @MitchGross here - for me, if the interviewees assumption was that the content was being made "off the record" and you didn't clarify otherwise, it would be dishonourable/unethical to use that content.
 
I would like to interject here, that except for a Hard News story, anything without a written release is pretty much a waste of your time anyway. No one is going to buy it, because the guy is going to sue them because they are the guys with the money.

As a photographer, I used a simple release that allowed me to use my photos of them and/or their property "for any legal purpose". For iffy stuff, I used a full legal release form from the ASMP, but no one, other than a professional model who knew all about them, would sign one (two pages of fine print legalise) without consulting their lawyer first.

There are two things about contracts that most people have wrong. 1. They can be simple: Just "I agree to do this, and you agree to do that". 2. Money need not be involved. Just their pleasure of being in a film is compensation enough.
 
Jim Feeley said:
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So for you, Mr. Goings (the OP), I'd think it's worthwhile to go back to the guy and say something like, "you know the thing you said was off the record? It's a really great statement, can I use the original statement or can we talk on the record about that again? For these reasons, I think going on the record would be a good thing to do."

And if you can't get that and they think "off the record' means you should act like they never said it, maybe consider their statement "on background" and ask them later in an OTF or sit-down interview to respond to the same topic. If they go all "off the record" again ask them why they don't want to talk about this. Figure out how close to their hurt point you can get them to go on the record. Balance that with having them bolt....you know the dance..
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I have tp concur with Jim here. Legalese is one thing - especially in litigious societies like the US - but one can't omit the personal relationship with the interviewee. When one begins to talk legal action, it often means that that relationship has soured beyond repair and that will ruin one's career even before phone calls to Dewey, Cheathem and Howe.
 
graywolf said:
I would like to interject here, that except for a Hard News story, anything without a written release is pretty much a waste of your time anyway. No one is going to buy it, because the guy is going to sue them because they are the guys with the money.
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I anticipate the next question(s) would be, "Well what if I don't sell it? What if I just put it up on YouTube for free? Then I won't have to worry about E&O insurance or any of that stuff."

Say you don't sell it. You "just" put it up on YouTube. Then you are leaving yourself wide open to being sued seven ways from Sunday. It doesn't matter if you're not making money on it. You see, E&O insurance exists to stop you from doing something legally unsafe that you could be sued for. It's not the kind of thing you want to avoid.

Proceeding to use this material in spite of the advice given here is financially, and perhaps personally, dangerous. But again, if you want the absolutely definitive answer, then consult a QUALIFIED attorney.
 
On a personal level over the years I have had to deal with so many potential interview subjects that feel they have been tricked by producers in the past making them incredibly guarded and reluctant to be on camera. Its a shame that a single bad experience could render that source dead to future productions. It takes a lot of trust building as a producer to bring someone back from the feeling that they were exploited by producers.

If I were the OP I would go back to the subject and discuss a way to get something that can work for both of you in an ethical manor. The right time to address this was prior to the interview or the moment the subject said they wished to discuss off the record. Learn the lesson and don't double down and dig a bigger hole for yourself. In the end You might not get the information you desire for the same reason the subject doesn't want to be on record for saying it. Knowing the information can allow you to reframe other questions and also how you approach other interview subjects or angles. Each one might talk just enough about something to give the idea of something without saying it outright. Audiences are smart and can read between the lines.
 
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