Legally Speaking, It Depends – Writing Documentaries

Let me state this up front. Documentaries are written. They are not just a hodgepodge pasting of random bits of interviews or facts thrown together willy-nilly. It may not take the form of a narrative film, nor strictly follow all the so called “rules” of such writing (what does?), but there is a skill to creating a great documentary and the key lies in the writing of it. The art of finding the through line story to tell amongst all the bits of captured statements and created narration is a difficult but fulfilling task.

And the documentary writer has to be aware of the different rules of the game they play. There are legal and business elements that are unique as well as familiar ones that take on a different tenor when applied to documentaries. I'll attempt to touch on these variances through example where I can, taking a cue from the newer style of documentarian approaches as well.

Dictionaries have mildly varying definitions of what a documentary is. Most focus on presenting facts in a factual manner with scant few fictional elements thrown in for spice. For me, this proves as always that dictionaries are consistently at least a few decades behind where the real world exists. With such famed documentarians creating controversial or at least stimulating works as Michael Moore and Ken Burns the art of the documentary has expanded from the staid, “just the facts” Detective Friday approach to telling stories in a multitude of ways.

New artists are taking the form in creative and exciting directions, mixing the previously taboo approach of incorporating dramatic reinterpretations within historical footage or creating imagery and mood out of whole cloth speculation. Sometimes these documentaries end up missing the mark or coming off as biased, experimental messes (prudence keeps me from mentioning specific examples). But sometimes these new approaches find intriguing voice and speak loudly in ways we've never seen before (a stellar example is the documentary by Sarah Polley Stories We Tell, an experience unique in film, quite an achievement). Or telling an unflinching story takes its cues from narrative forms, yet transcends them by exposing the all too real realities feeding them as in the riveting, powerful and difficult The Act Of Killing by Joshua Oppenheimer and a raft of anonymous contributors (see the film and you'll realize why).

And documentaries are catching on in public and critical viewing. There were a record breaking 151 documentaries eligible for the Academy Awards consideration this year. So what goes into making a modern documentary from the filmmaker/writer perspective?

In Focus - Documentarian Mark Cousins

Into this new world of documentarian experimental expression steps a filmmaker with a sharp, ravenously well read wit and rapid fire tongue that seems to never stop to consider what he's about to say until long after it is said, Mark Cousins. This Irish born Scotland resident combines his backgrounds as author, critic, curator and broadcaster to create a unique flare for expressing a whirl wind of perspective. And he is incredibly prolific. In the past few years he's created and released:

2011 – The Story Of Film: An Odyssey (15 epsiodes)

2012 – What Is This Film Called...Love?

2013 – Here Be Dragons

A Story Of Children And Film

Another film (at least one) before you finish reading this article.

Mark Cousins' films don't rely on traditional interviews, so I won't directly interview him for this article. I met and talked to Cousins at the Telluride Film Festival. His demeanor and easy going approach to the people he met in line and on the street are a testament to the manner he creates his films. He's a likeable guy, easy to strike up a conversation with and fully willing to be accepted at any level of discourse, with anybody he meets. I knew of his work from the 2012 fest's showing of What Is This Thing Called... Love? documentary and told him of my admiration of his style.

And individual style is key to making a documentary stand out in the flood of competition.

How each documentarian approaches their project is as varied as their end results. But there are consistencies. Much less money is available to fund documentary productions. Though there are some resources occasionally available to docs that aren't for narratives (grants, fiscal sponsorship, etc.) the totals aren't large. A mega-budget documentary wouldn't cost over six figures.

With tighter budgets, micro-management of resources is essential. Many documentaries are put together by dozens instead of hundreds (or even ones). Mark Cousin's uses his previous training to keep his overhead low. He doesn't use a full crew, nearly always shooting alone. He uses readily available equipment – a consumer camcorder. He said he was soon to acquire a Blackmagic Pocket Camera (by the way Mark, I finally got mine and I love it). Decisions about how to handle interviews, lighting, logistics, and everything else have to be carefully considered when shooting docs.

Planning goes a long way in preparation, but, documentaries are notoriously slippery to wrangle into a schedule, since a new inspiration can lead the documentary into a direction never imagined. (Consider how Alex Gibney's The Armstrong Lie started out as a feel-good, hero comeback story until the bombshell broke.) In that planning, a documentarian conspicuously depends on the releases and waivers gotten from the participants to be broad enough to cover a change in tone from the initial intentions, just in case.

Having a broad idea of what the documentary is going to likely be about is a no-brainer. But rigidly adhering to a script and looking for interview quotes that fit that mold rarely works and nearly never creates an interesting doc. The planned questions asked can lead a documentary in an anticipated direction, but, the responses might open doors never expected. A good documentarian allows the decision as to which path to take to develop under its own steam. This can drive some writers mad who would rather have all things set ahead of time, but, finding the thread of the story after shooting leads often to the best results.

Do you start with an outline, a draft, a title? It depends on what you need to move forward. For Cousins, he usually starts with an event or place, then writes while there, in the moment. He usually brings reading material along for inspiration while traveling between venues and these often influence his viewpoint. Write at all times. Edit later. That's what works for him and leads him to quick production turn-around. Other documentarians I know have shot hundreds of hours of footage without a plan on how it'll tie together, then sift through this mass for months searching for the threads to weave into a coherent story. Both approaches can work. Find one that works for you.

In the matter of style for documentaries you are much freer within the documentary structure to vary from the norm in the telling. A horror film has to follow the rules of the genre. A modern documentary has much more flexibility in the form it can take to convey its message. As long as the message is clear and accurate- even if just opinion, it can still be called a documentary.

Mark Cousin's style is reminiscent of a modern version of Ross McElwee's Sherman's March (Oscar winning documentary – must see). He starts with a premise, but, doesn't let it drive the film rigidly. He allows the film to flow where the mood and experiences take him. If you do it boldly, nakedly (sometimes literally, with Cousins) you'll often find an interesting story that you didn't know you were going to tell. Don't blink and tell it all.

Some critics, who possibly don't get it, call this style navel gazing. To some degree they may be right. But all documentarians are giving you their viewpoint, their skewed perspective on their subject. It's refreshing when the documentarian is fully aware of that bias and uses an unblinking, reflective eye within their storytelling. Interesting people make interesting documentaries about interesting things.

A documentary is a difficult thing to categorize outside of the initial “it's not a narrative.” This makes it difficult to sell since a buyer doesn't have a peg to hang it on. You could build a brand identity like Ken Burns has done. You could go for controversial subject matters to shock the marketplace. Michael Moore was a trailblazer in this but has since had lots of followers. Whatever you do, you mostly have to do yourself, take control of your own destiny, and keep at it to make it work. There are no Hollywood producers out there looking for the next great documentarian. Since you have to do nearly all the work yourself, you'll have to be much more familiar with the business end of the market.

Theatrical distribution for documentaries is more available now than in previous years. But there still is no proven path for theatrical success. Often other media are where a documentary will live or die. Educational venues are an example of markets that aren't readily available to narrative films but are to docs. Learn the markets your subject matter might thrive in and try everything. But don't sell the farm in the process.

Cousins keeps his own rights as much as possible. He has a distributor that he gives first crack at each of his films, but, he has no guaranteed buy. He takes it mostly upon himself to market and pitch his films to each of the territories, markets, sub-markets or venues that are interested in his special brand of storytelling. He says he's found a way to make it work for himself. He keeps a significant portion of the profits of each of his films and each of his films has made a profit, so far. But it remains a lot of work and diligence as well as maintaining a high level of production value and subject matter interest.

A documentary is less fictional than a narrative film. That isn't to say that they are always or even often fully true. A documentarian should be aware that stretching the truth or getting it wrong has more consequences when the audience has an expectation of being presented with facts. Fact checking is a paramount necessity to avoid the potential legal bind of skewing fact based works within a documentary structure. There is a significantly wider leeway given to a narrative film “based on actual events” than a documentary supposedly reporting them.

If you choose to create documentaries, know that the success will greatly rely on your own initiatives, finding your own paths and being prepared to learn a lot about the boring bits of a film's life in order to keep it alive. As always, it depends...

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