A friend of a friend was shooting a documentary and expressed concern over the portrayal of one of his subjects who came off as less than flattering. Even though the subject signed a release form that had a “promise not to sue” clause, the filmmaker was concerned that this subject would hold him liable for perceived damage to his reputation. But the filmmaker didn’t want to tamp down the subject’s “villainy” either since it was a crucial element to the story. "Where's the line between fidelity to the story and protection from legal action?" the filmmaker wondered.
As with everything in the law, the answer is a resounding “it depends."
See, when it comes to documentary production, you can’t film someone without their permission. That would be considered an appropriation of likeness, a right of privacy that prevents you from using someone’s name or image for commercial reasons without their consent. Filming someone without their permission is a good way to get sued, and probably a good way to get your ass kicked as well. A release form gives you that permission, and it does so in writing, which I’m always in favor of (some filmmakers get their subjects giving releases on camera, but I discourage that practice because those releases could be compromised; filmmakers can often lose that footage once editing starts or the release may be too limited in scope to cover the filmmaker’s need. Paper is always the safest bet).
Release forms aren’t just a necessity for people either. You need them for any locations you film, any recognizable signs or advertisements that will be featured (e.g. if you want to film your characters at a Denny’s, you need to get the location release AND a release to show the Denny’s sign or logo), and any archival material you want to use, such as film and video footage, newspaper clippings, photographs, etc. I once got a location release for my crew to film at a diner in Kentucky but failed to get a release for the sign from the owner. Luckily I realized my mistake and obtained one before the episode aired. Otherwise, we would have had to blur the sign.
Pretty simple right?
But here’s the dirty little secret of release forms: even when your subject signs one and even if it contains a promise not to sue, the subject CAN actually sue you if he reasonably believes that he has been libeled or was induced to participate under duress or fraud (i.e. you lied to them about the nature of the film). A release form doesn’t let you do whatever you please with the footage. There has to be a certain level of truthfulness. Of course in reality, the truth of any situation can be open to a wide variety of opinions. As far as my friend of a friend is concerned, how unflattering can he make his subject without it becoming a public attack on the subject? Conversely, how far back can he pull on making this subject look bad before he compromises the veracity of the story? Sure he may save himself from a legal hassle, but what's the point of telling that story then? There's no easy answer, and the choices he makes will have actual human consequences because, unlike with narrative films, he's dealing with actual human lives.
That’s why smart documentarians will have lawyers like myself perform a pre-broadcast review; looking at the portrayals of the film’s subjects and assessing libel is one of the things we'll do. And while it doesn't happen often, there are times where we determine that the release form just doesn’t protect the filmmaker because his use of the footage differs so wildly from how the subject thought he would use it.
My advice to all you documentary film and reality TV producers out there: carry reams of release forms on your person at all time and get one for every person, place, or thing you put in your film. But don’t forget about the lawyers. They're going to have your back on this one.