LEADING THE EVOLUTION
CAUCUS JOURNAL SPOTLIGHTS...JAMES HIRSCH - "DOCUDRAMA: RULES FOR THE CREATIVE COMMUNITY"
I was recently asked to serve as an expert witness in a lawsuit involving a made-for-TV movie. It was a docudrama based on one person's memoir of his involvement in a major historical event. Certain facts within that larger true story were, indeed, altered to achieve dramatic clarity. I can't go into the details of that case because it is still in active litigation, but the experience immersed me in the middle of a question that affects all of us who work in the TV and movie business. When is it acceptable to bend or alter the facts when creating a movie about real life events?
That single question hangs over an extraordinarily large percentage of projects in both television and motion pictures. Stories based on real events, real people and historical events are the main staple of material and the most natural resource of the creative process. So how have we come to this position and what are the rules we should follow?
There are clearly no easy answers; no one set of guidelines that apply to each and every situation. What seems simple really isn't. It never works that way with art. Art is by its very nature a personal point of view. Picasso doesn't ask us to agree with his vision of the human form. He asks us to appreciate HIS peculiar visual definition.
If we are going to make a movie about a real life event, a real person or a particular historical event, shouldn't we stick to the facts and make it accurate? Is it okay to play fast and loose with the facts when we acknowledge to our audience that the movie or TV show is "based" on real events? What does that term "based on" really mean? How wide and broad can that creative trench be? Does a movie like Spotlight fall into the same "based on" category as something mostly fictional like The Revenant? If you think about it, isn't fiction itself based on real events? Didn't Shakespeare write about real people and real events? Isn't something as fictional as Silence of the Lambs still based on real serial killers and real FBI practices and real agents? Isn't L.A. Confidential "based" on the real LAPD of another period?
Here's what I learned from a variety of sources. In many cases here, I'm quoting from academic or legal studies of various cases in the past. Rather than footnote each of them, let me just admit that I'm sometimes using someone else's descriptions to make my point. I've put those sections in "quotation marks" to indicate where I have quoted someone else.
"A docudrama is a genre of television programming and feature films. It is a dramatic reconstruction of a real event or person, with artistic license taken for dramatic effect. On stage, it is sometimes known as documentary theatre."
"In the core elements of its story a docudrama strives to adhere to known historical facts, while allowing a greater or lesser degree of dramatic license in peripheral details, and where there are gaps in the historical record. A docudrama, in which historical fidelity is the keynote, is generally distinguished from a film merely "based on true events", a term which implies a greater degree of dramatic license; and from the concept of "historical drama", a broader category which may also encompass largely fictionalized action taking place in historical settings or against the backdrop of historical events."
So what good, really, does that definition do us? How do we measure that "greater degree of dramatic license"? Who decides that standard? Who makes that call and what are the ultimate obligations we face as writers, producers and directors of docudramas?
"Docudrama as a separate category belongs to the second half of the twentieth century. After World War II, Louis de Rochemont, creator of The March of Time, became a producer at 20th Century Fox. There he brought the newsreel aesthetic to films, producing a series of movies based upon real events using a realistic style that became known as semi-documentary. The films (The House on 92nd Street, Boomerang, 13 Rue Madeleine) were widely imitated, and the style soon became used even for completely-fictional stories, such as The Naked City."
Jack Webb had a role in the movie; He Walked By Night, about a real life serial killer named Erwin Walker. On the movie, Webb befriended an LAPD officer by the name of Marty Wynn. Out of that relationship came Dragnet...perhaps the most "docudrama" of all cop shows. Certainly a precursor and the show that helped define TV's most widely used genre.
Does any of this historical reference help? Ultimately, doesn't all history and all biography come down to a matter of interpretation? One historian's view of WWII might differ completely from any of the countless films that have used that global conflict as a backdrop for stories based on real events. Whose version is the truth? Only the American viewpoint? What about the French POV, or the English...or the German?
Consider a modern classic like Robert Schenkkan's All the Way, the Tony award winning play about LBJ's ascendance to the presidency after the Kennedy assassination and his efforts to bring about social change during his first months in office. The play became a successful HBO film. Was Schenkkan obligated to be completely accurate in his portrayal of LBJ and everything he and the other real characters said? Would being that accurate have made the play better? Without the playwright's magic with dialogue and description, what is left? While real dialogue taken from transcript and congressional records might work in some cases, isn't it the job of the creative team to make something more compelling when necessary? And isn't this retelling of history Schenkkan's view of things? Do we think Martin Luther King Jr. or Senator Harry Byrd would have agreed with this historical view?
And, while we're at it, how about the musical Hamilton? I have to admit to not having seen it yet, but I think we can say with some certainty that the founding fathers did not use rap music to communicate during our country's early days. Does that diminish the accomplishment of the musical?
Still, what happens when writers and directors exert their creative judgement and harm someone's reputation in the process? And how is that line crossed? Who determines when something has been defamatory? The decision is ultimately made in a courtroom or at least on the courthouse steps. And therein lies a history of lawsuits that have been filed against docudramas over the years.
Movies ranging from Missing, Costa-Gavras's film about the slaying of an American in Chile; to The Hurricane, Norman Jewison and Armyan Bernstein's story of Rubin "Hurricane" Carter. Those are only two of the countless lawsuits that have been filed over the years involving someone who felt defamed by their portrayal in a movie or play or television show.
In the case of The Hurricane, the three minute opening fight scene between Reuben "Hurricane" Carter and Joey Giardello shows Carter pummeling Giardello but being denied the victory by an all-white panel of judges who award the victory, unfairly, to Giardello. An unfair decision based on racial bias.
Giardello, himself, was stunned and humiliated to see this as he sat in a theater watching the movie. Almost everyone agreed, including the filmmakers and Carter himself, that this depiction of the fight was completely false.
But consider the filmmakers' motives. Was it to defame and embarrass Giardello, or was it to establish for the audience that this was a movie about a black fighter who would face intense racism in his life. Could they have changed Giardello's name? Perhaps, but that would have been a legal maneuver to avoid a lawsuit...not a creative decision. Does that make them free of guilt in this case? Did Giardello have a defamation or "false light" position? Not so easy to judge.
"If even one jurisdiction continues to recognize 'false light' then docudrama filmmakers anticipating nationwide film distribution, which subjects them to personal jurisdiction in every state, must guard against false light actions. Docudrama filmmakers are unfairly burdened because the prohibitive cost of entering into multiple depiction waivers may prevent them from telling certain stories, curtailing the freedom of expression guaranteed by the First Amendment."
We as creators DO have an obligation to check facts. We DO have an obligation not to include defamatory statements about an individual. We DO have an obligation to tell the truth. But that can become a very gray and difficult position to define. Are we not expected as artists to draw our own conclusions? Doesn't the audience expect us to take a point of view? Isn't it part of our own obligation as creators to find that point of view and deliver it?
There are countless articles and legal opinions that have been winnowed down by the courts over the years to determine the difference between portraying someone in a "false light" and actually defaming their reputation with malice aforethought. Still, when all the legal arguments are over, we are left right back where we began. As writers, we face that blank page and as producers and directors we strive to bring a writer's blueprint to the full reality of a motion picture. Along that treacherous path, we make countless decisions. We strive to stay true to the basic essence of what we are creating. We find the nugget of meaning in the dense forest of our stories and then try our best to stay true to that core, that nugget, which provides the central viewpoint of our work.
Sometimes we make mistakes in that journey and there are casualties, and they must, ultimately, be accounted for. The docudrama is hardly an endangered species. It will continue, and so, we presume, will the lawsuits that follow.
James Hirsch
Caucus Member
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