Archival Storytelling, released this month through Focal Press, addresses one of the most challenging issues facing filmmakers today: the use of images and music that belong to someone else. Where do producers go for affordable stills and footage? What do vérité producers need to know when documenting a world filled with rights-protected images and sounds? How do filmmakers protect their own creative efforts from infringement? And how do filmmakers evaluate the historical value of archival materials and use them ethically?

In October 2007, as research for the book, Sheila Curran Bernard and I convened a panel of experts who met at University of California, Berkeley to discuss the ethics of archival filmmaking. The three-hour discussion was edited for the book and is excerpted here. Panelists were Claire Aguilar, vice president of programming at ITVS; Jon Else, filmmaker and director of the documentary program at UC Berkeley's Graduate School of Journalism; Stanley Nelson, filmmaker; Bill Nichols, director of San Francisco State University's Graduate Program in Cinema Studies; and Rick Prelinger, filmmaker and founder of the Prelinger Archives.

Defining Terms

Jon Else: I think any discussion about documentary ethics has to begin with an acknowledgment that if we were working at The New York Times or at Mother Jones or at NPR, we would not be having this discussion because there are a lot of institutions and industries in the truth business, or what purports to be the truth business, that have very, very clearly defined standards and practices. What makes what we do so exciting and dangerous and boisterous and invigorating [is that] we are constantly redefining what's ethical and what's not ethical, what is the line that we will not cross, and when have we crossed it. And the audience is part of this equation. An audience's understanding of what constitutes a documentary, what they take to be true, changes with time.

That said, there are untruths, and untruths have no place in documentary...A lot of our films do in fact inform and drive policy and they do inform public debate; they do inform the national conversation. And with that voice that we give to ourselves and others comes a responsibility to deliver the genuine article. I'm very aware when I'm doing these things that the currency that I trade in is evidence, and it is testimony.

Claire Aguilar: One of the interesting things that [ITVS has] dealt with is the intersection of working in public media (i.e., public broadcasting) but also serving the independent community...And it's still an oil-and-water mix in lots of ways. We kind of straddle the fence in terms of wanting to support documentary makers; on the other hand, there are increasing restrictions...Those run the gamut from journalistic standards to broadcast standards to rules that have been imposed by the FCC, for example, and then into creative vision and into what people can do, basically.

This has become more complicated, too, by the new media landscape and the rights management battles that we're in now...It's become very interesting for us, who are working with both those interests: the independents and the industry, which wants to aggregate all those rights and to corporatize and monopolize most of those rights. That's a long way from what we would call ethical issues in documentary, let's say, 10 years ago, but it's the reality of what we're dealing with right now.

Bill Nichols: It seems to me that sometimes documentary wants it two ways. One is a journalistic practice, tied to a venerable tradition of reportage, where words like fairness, balance, objectivity, truth, reality, covering both sides of the story and fact checking have genuine purchase, even if there's disagreement about how they get applied or sometimes even their applicability. On the other hand, within the broad documentary tradition there's a sense of it as an art, an expressive practice tied to a venerable tradition of cinematic achievement, which answers to the visions and values of makers, a tradition in which words like honesty, conscience, sincerity, imagination, fantasy, power, impact, and sometimes even beauty have genuine purchase; even if here, too, there's debate about their application and sometimes their applicability.

...Sometimes there's a tendency towards a "mix and match" kind of approach, where there's a desire to champion the adherence to facts and scrupulous research on the one hand, but also a defense of the right of the maker to shape material. And I don't think there's a solution to that; it's just part of the way this form is. Whether it's archival footage, interviews, re-enactments, voiceover commentary--all of those can be imaginative, effective ways to reveal artistry, as well as some of the significance of a historical or social reality. But it may seem like an ethical free-for-all: anything goes.

...If there is a sense of ethics that would be pertinent other than rules (which I oppose), I think it would have to arise from the grass roots. It would have to be what people in the pressure of the moment have found to be acceptable solutions to real problems. I think it's the actual filmmakers who forge their ethics...And it seems to me that there's a need to trust in the ability of an audience to make judgments for itself.

Stanley Nelson: As a filmmaker...you know what your film is saying and what it's implying. And you know what your footage is implying. And if it's not true, then I think there's a problem.

...I'm working on a film now about the siege of Wounded Knee in 1973...It went on for 71 days. And there's tons of shooting, people just shooting at each other. And you don't know what day it is, and it doesn't matter for us a lot of times what day it is. It does matter the day the federal marshal gets shot and gets paralyzed. That happened on a certain day, and certain things happened before and certain things afterward...We do our best to figure out when it is, and if we do know--"Well, wait a minute, they didn't have the tanks this early on"--then we can't use that footage. It's just that simple...We all work too hard on making films to have something like "when the tanks showed up" come back and bite you. Because it will come back and bite you.

Rick Prelinger: Filmmakers are not the only people who are faced with ethical issues around archival footage. Archives are too. And this gets really complicated. Access to archives is much more difficult than it needs to be. Some of it, it's simple: You can just go and buy it. But a lot of it, you can't buy. There are a bunch of fences that separate people that want to do something with the material itself. And there's a deeply ethical dimension [to this], which is intimately related with broad, very nebulous, but also very exciting issues about who controls history and who can talk the loudest...Archival ethics, I think, argues for access to the broadest possible extent that the law and that the means of the archive permit, rather than letting them be another gatekeeper.

Emerging Forms

RP: Creative considerations: a few words. And this really echoes what [others] have said, that culture is not static, that language changes, that media evolves. And the language of documentary is constantly changing. It's incredibly dynamic: it differs by community, by era, by generation. And right now, the character-driven documentary rules. But this is not inherent; this is the fashion of the moment. People used to make documentaries about a day in a life of Moscow or Kiev (that's Vertov), or rivers (Pare Lorentz). They used to make cinema vérité films that were open-ended, where sometimes you couldn't tell where reality ended and reconstruction began...

So how does this relate to archives? So many younger makers don't work with stories as older makers do. They remix and recombine fragments from many sources in real time...There's a dynamic, living collage that's going on, that's shared; it's communal. And a lot of people spend a lot more time as hybrid producer/consumers than they do watching TV or movies...And this group loves archival footage. So archival material is, in a sense, almost utopian because it opens up all sorts of possibilities for change in the way that documentaries work. I think we need to make sure that we're open to new ways in which footage is used, and celebrate these new ways.

That, to me, is an ethical issue. It means accepting actuality and re-enactment, fidelity and imagination, newer kinds of narrative, not eternalizing the present, because you can use archival material as a key to an eternally emergent media culture.

JE: When people [hear us] talking about fact checking and having the genuine article on the screen, they think that we mean everything has to be a Frontline. And it could not be farther from the truth. Everything I'm saying, I think everything that everybody's saying, applies equally well to an Errol Morris film or a Lourdes Portillo film or to Michael Moore or to Darwin's Nightmare..."Journalistic" just simply means that if I think it's a picture of Malcolm X on the screen, it has to be Malcolm X.

RP: On the other hand, I think that new forms are emerging that make use of suggestion, that make use of context, that make use of metaphor, and they express themselves just as clearly and honestly. I agree that if you show the skyline of Dayton and you say, "Welcome to San Francisco," either you have a problem or you're making art. And if you're making art, you better be good at it if you're going to get away with it.

JE: As long as the audience knows what it's getting. And I'll give you an example. In The Devil Never Sleeps (Lourdes Portillo's film), there's a wonderful anecdote in which she describes her uncle, Oscar. He had a contract, unloading a brand new bulldozer from a ship onto the shore, and the bulldozer fell in the ocean. And Uncle Oscar got the ship owner to pay for a new bulldozer. But the next day, he went and got the old bulldozer out of the water, so he got two bulldozers for the price of one; whereupon Lourdes cuts to a hand coming out of the water with a toy bulldozer on it. And we know exactly what that is. It's like the re-enactment footage in The Thin Blue Line. We know that's not the real deal.

Toward a Code of Ethics

RP: ...The vast majority of production that uses archival footage is [commercial, lower-budget cable]. It's text based; somebody sits down and writes a script, or maybe a script is borrowed from somewhere else, and then somebody who's usually fairly junior on the totem pole is asked to go and find images to fill in the blanks. And so you get these synthetic works that are based on what's achievable, what's cheap...This whole deliberative process, the really painstaking work that people at this table do, doesn't happen...My question is, How can best practices such as we're talking about here, or deliberative process, become an expectation?

BN: I think what's really going to be effective is if this is addressed collectively by the documentary community at the level of education and peer pressure...Maybe you do have a code of ethics. But at the very least, you try to get people to start talking about and agreeing on some very basic guidelines about this stuff. And then, when you get that peer pressure up, you can call people on things. There's nothing more important for documentarians, because the truth is the power.

JE: I don't like rules...However, I am in favor of principles. Frontline has a really great set of standards and practices [www.pbs.org/wgbh/pages/frontline/us/guidelines.html]. And I think what will eventually happen is it will combine with a grassroots thing, with a bunch of institutions--maybe Sundance, IDA, ITVS, maybe the Center for Social Media--so that there's something that's a couple of sentences long, that basically says, "If we're going to lie to you, we'll let you know about it"--something to that effect.

Archival Storytelling: A Filmmaker's Guide to Finding, Using, and Licensing Third-Party Visuals and Music, by Sheila Curran Bernard and Kenn Rabin, will be published by Focal Press this month. See www.archivalstorytelling.com for details.

Kenn Rabin is an internationally recognized expert on the use of archival materials in film storytelling. His documentary credits include a number of acclaimed archival television series, including the 13-hour Vietnam: A Television History, the 14-hour Eyes on the Prize, for which he was nominated for an Emmy, American Masters, American Experience and Bill Moyers' Journal. His Web address is www.fulcrummediaservices.com.

Sheila Curran Bernard is an Emmy and Peabody Award-winning filmmaker and consultant and the author of Documentary Storytelling, a best-selling guide to story and structure in nonfiction filmmaking. She recently joined the faculty of the University at Albany (SUNY), where she holds a joint appointment as Director of Media Programs at the New York State Writers Institute and Associate Director of the University's Documentary Studies Program. Her Web address is www.documentarystorytelling.com.