On Chronicling Criminals

Though it's legal to film criminal acts, crime can certainly complicate your filmmaking process.

Let’s face it: As a society we are obsessed with the criminal wrongdoings of others. So it’s not surprising that documentary filmmakers have taken up this subject in their films. A recent example is Exit Through the Gift Shop, a documentary about street artists who illegally graffiti public and private property. During one scene, Thierry Guetta, who is making a documentary about the street artists, assists Banksy, one of his subjects, with a work of street art. While this makes for a great scene, the artist and the filmmaker, as a result of their participation, are both vulnerable to criminal prosecution.

Filming criminal acts brings up critical issues for the filmmaker: What can I film? What sort of releases do I have to obtain from my subjects? And, if I film someone doing something illegal, will I get thrown in the slammer?

Documentary filmmakers should always be vigilant about protecting their subjects’ privacy rights. The right of privacy is, essentially, the right to be left alone. It protects people from those who would use their name, likeness, or personal information in a film. However, someone appearing in a documentary can waive this right by signing a release. A written release, which details the specific rights waived by a film’s participants, protects you in the event of a privacy invasion suit. You should obtain one from every individual you film.

The right of privacy is not unlimited, however. For example, celebrities and other public figures do not have the same privacy rights as those who aren’t in the public eye. So, you can use Courtney Love’s name and likeness in your film without a release, as director Nick Broomfield did in his documentary, Kurt and Courtney. But you can’t use film you took of your neighbor watering her lawn unless you have her permission.

More importantly, however, is the other limitation on the right to privacy: illegal acts. If you happen to be spraying graffiti on your mother-in-law’s house, or throwing puppies from the roof of your apartment building, or conducting a drug deal on hippy hill in Golden Gate Park—you have no right to privacy. The great thing about this exception is that the documentary filmmaker gets to use this footage of these illegal activities without a release. The criminal can’t sue you because he has no right to privacy!

Sounds good, right? Alas, life is not that easy. There are exceptions to this rule. Even if a minor is committing an illegal act, he or she still has privacy rights. You must get a release signed by the child’s parent or guardian in order to use the child’s likeness or name in your film. The law views minors as particularly vulnerable to various forms of exploitation, and thus, special provisions exist in order to protect them. If you’re using minors in your film, ALWAYS get a release.

So, I’ve addressed your civil concerns: you now know how not to get sued. But that doesn’t mean you won’t get thrown in jail.

Accessory to the crime. In order to defend yourself from an accessory to the crime charge, you have to be able to argue that the crime would have occurred whether or not you were filming, and that you took absolutely no actions to contribute to the crime. So, let’s say that you’re filming the lives of computer hackers. You’ve grown to like these guys, and, one afternoon, you provide them with some advice you happened to read on the Internet about how they might continue to remain undetected by authorities. Are you an accessory? Yes. Don’t do this. One more example? Okay, you’re filming a kid tagging a railway car with graffiti. The kid runs out of paint. You can’t finish the scene—unless you get off at the next stop and buy the kid another can of paint. You buy the paint, and give it to the kid. Are you an accessory? Yes. Don’t do this either. The lesson here is: Film it, but don’t participate in it.

Acting as a witness. In some states, like Connecticut, a witness to a criminal act may face criminal prosecution based on their failure to report the act to the authorities. This is called “misprision of a felony” or “compounding a felony,” and it can land you in jail.

In other states, like California, a person’s failure to report a crime without more is not in itself a crime. While morally reprehensible, failing to dial 911 while witnessing a street gang initiate a new member with a brutal beating does not violate the law. Despite this protection, however, as a witness to the crime, a court might compel you to testify against the assailant in a criminal prosecution. And if you fail to do so, a court can hold you in contempt. It’s also good to remember that your footage could come back to haunt you. The police can use the footage against you and the hackers, or the kid tagging the train. If you don’t want to give up the footage, they can subpoena it as evidence. It’s best to let your subject know the potential criminal implications of allowing you to film their illegal acts.

Wait, you want more examples and illustrations? Okay. Let’s say you’re creating a documentary about the Balloon Boy Hoax of 2009. You’re aware of the family’s plan to mislead media outlets and local authorities. You don’t do anything to contribute to the criminal activity in question, and you fail to alert authorities of the plan. Unless this is a state with a witness liability statute, you’re okay.

Remember, however, that you need releases for the minors involved. (The main kid who was supposed to be in the balloon was named Falcon!). But because the parents are committing an illegal act, you can film the act and the parents discussing the plot without getting releases from them. But in order to avoid criminal charges, you cannot partake in any activity, however small, that aids the parents in their plan. So, if you’ve followed the rules above, you’ve filmed an illegal act without becoming criminally liable!

But what if you wanted to create a documentary focusing on the plights of young Hollywood—perhaps Lindsay Lohan is the main attraction. As I mentioned earlier, because Lohan is a celebrity, her privacy rights are restricted. This gives you, the filmmaker, substantial leeway to include her battles with drugs and alcohol without the use of a release. But you must keep in mind some of the restrictions placed upon you by the Right of Publicity. Generally, the Right of Publicity allows Lohan the right to control the use of her name, image and even voice for commercial purposes. Although you can include her in your film, you can’t use her name or image to market your film, unless she has given you permission. The Right of Publicity applies to all of us, but it’s most commonly associated with public figures.

Additionally, the Right of Publicity, unlike the right to privacy, is not compromised by involvement in criminal acts. If you’re planning to include footage documenting Lohan’s illegal drug use, you are still prohibited from using her image to promote your film, despite the fact that you are not required to get a release to use the actual footage.

Ultimately, securing releases from those who participate in your documentary is the best way to avoid frivolous invasion-of-privacy suits. If you haven’t gotten a release, however, court, in certain contexts, may grant you additional leeway. This leniency depends on the nature of the act captured, the location where the act took place, and the status of the person filmed. But don’t take any unnecessary risks, and be cautious not to engage in any activities that may place you within the arm of the law.

Big thanks to my interns No’el Pierre and Steven Dabrowski, who helped with this article. They’ve inspired me to produce the Ballon Boy movie starring Lindsay Lohan and Banksy. (Is he in the balloon? Does he exist?) Cinema gold!!!