General ethics in film making

Introduction

Should the moral and ethical guidelines of documentary and mockumentary filmmaking be strictly adhered to if they impede on the overall artistic vision and message of the film? For the bases of this thesis I have chosen to answer this question through a discussion of the ethics of cinema vrit and the documentary/mockumentary style genre. In particular, I have chosen to focus my study on one film of this style of filmmaking. The 2006 film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan, often referred to simply as Borat! (Borat the character and Borat! the movie (hereafter Borat!), is a mockumentary comedy film directed by American filmmaker Larry Charles and distributed by 20th Century Fox. (1) It was written, produced by, and stars the English comedian Sacha Baron Cohen in the title role of a fictitious Kazakh journalist traveling through the United States, recording real-life interactions with Americans. The character of Borat himself is distinguished by exaggeratedly strong misogyny, anti-Semitism and antiziganism (racism against Romani people or gypsies), which is depicted as, apparently, the norm in his homeland of Kazakhstan. The character of Borat was originally created by Sacha Baron Cohen. He was used as a character for Da Ali G Show, a related satirical TV series starring Baron Cohen and featuring amongst others the title character Ali G and Borat. The first series of Da Ali G Show originally aired on Channel 4 in the UK in 2000. In the series, Baron Cohen carries out ridiculous interviews with unsuspecting people (including celebrities and high- ranking officials). (2.) This film Borat!, is shot in mockumentary style using handheld and often hidden cameras.

A mockumentary is essentially a “mock documentary”, a parody of the earnest nature of the documentary genre (3). As a medium, it is most successful when the traditional documentary structure is maintained or exaggerated. Mockumentary filmmaking is made under much of the same genre rules as that of Cinema Vrit. Interviews in a mockumentary are deliberately tiresome, with the interviewer’s reaction shots obviously edited at a later date for either comic effect (4). Often, even the shooting and editing of a mockumentary compared to a genuine documentary is different. The sincere documentarian, such as Werner Herzog in Grizzly Man (2005) will edit any embarrassing, non-plot relevant or self-indulgent interviews before the point that the audience will laugh at the character. Grizzly Man documents Timothy Treadwells infantile affection for bears, his anger at society, his raging narcissism, his paranoia and finally the tragic deaths of Treadwell and his girlfriend (still .01) in October 2003.(.5) (still .01) Outtakes from Timothy Treadwell’s original video footage were later screened for the first time as part of the exclusive companion film. In order to put Treadwell’s experience into context.(6.) Whereas, the mockumentary filmmaker will intentionally leave these embarrassing edits in the finished film for comic effect. In doing so, the moral and ethical dilemmas faced by professional documentarians are, for the purpose of the film, overlooked so as to get the best result, joke, outrageous comment, or sound bite in most cases. An example of this is Michael Moores Roger and Me (1989) when Bob Eubank (still .02) host of US game-show “The Newlywed Game” is shown telling an off-color joke:

“Why do Jewish women never get AIDS? They only marry a**holes, they don’t screw ’em.” Eubanks claims that he only told the joke because he thought the camera was off. (7.) (still .02) Borat is part of a cinematic tradition of using mockery to diminish the power of political, social and cultural oppressors.(8.) This is done by exposing the absurdity of their control, much like past great films such as Charlie Chaplins The Dictator (1940) and Stanley Kubricks Dr.Strangelove (1964 ) Within the first chapter of this thesis, I define and address the core elements of cinema vrit and compare and contrast it to that of Direct Cinema and sincere documentary filmmaking. The moral code of ethics that filmmakers use as guidelines when first approaching the public as subjects for their films will also be addressed. For the basis of my second and third chapters, I take the case study of Borat! and form an argument around the mockumentary genre in relation to ethical dilemmas. In Chapter Two, I address the ethical oversights on the part of the filmmakers and the careless treatment of their subjects. I isolate and identify scenes and cases within the Borat! film as examples of how the filmmakers fail to respect the moral and ethical guidelines that inform other documentaries.

By relating film practice to this established codes of ethics I show how the filmmakers jeopardized the rights of the people used in the film, such as the fraternity brothers and the residents of the village of Glod. I show one side of the argument in the second chapter. This argument explains with the use of examples, how the filmmaker has taken advantage of the subjects or in some cases used their likeness without proper informed consent(9.) in order to stay true to the artistic vision of the film. I look to detail the actions of both the subject and the filmmakers as well as the anatomy of the scene and the level of interaction and knowledge that the filmmakers offered the subject before participating in the project, if any. I also address the resulting effect on the subject. In doing so, I show that the filmmakers artistic vision and message, no matter how great or relevant, can have a long lasting negative effect on the subjects and participants of the film when they are duped into being pawns and unsuspecting foils to the main comedic actor playing a part with a hidden camera. The third chapter of the thesis, however, I show how the artistic vision was sincere and that the right to public freedom of speech was fairly used for the greater message and intent of the film. My goal is ultimately to present both sides of the same argument and through doing so, construct a complete and informed judgment on the moral and social goals of the film, as a satire, which I will present in my conclusion. This will prove that the actions of the filmmakers, although morally unethical, were still legal and artistically relevant. Borat! aims to set an important precedent that the artistic vision and the use of comedy or social satire are crucial to the success of the mockumentary genre of filmmaking. In the context of Borat! I choose specific examples, to address the intention behind the filmmakers conduct towards their subjects.

Chapter One

The Theory Of General Ethics Relating To cinema vrit And Direct Cinema In Modern Film Making. In this chapter I define the theory of ethics in relation to professional and employee ethics, in the relevant context of filmmaking. Because this thesis is about mockumentary filmmaking it will first help to establish the ethical foundations for the circles of filmmakers and other professionals working in this genre. When dealing with the subject genre of documentary and/or mockumentary filmmaking, it is first crucial is define a difference between the two. The word documentary was coined by Scottish documentarian John Grierson (10.) Griersons principles of documentary were that cinema’s potential for observing life could be exploited in a new art form and that the “original” actor or subject and “original” scene are better guides than their fiction counterparts to interpreting the modern world. A mockumentary is essentially a parody of the documentary nature of filmmaking and is successful when the structure of a traditional documentary is exaggerated. These films are not unlike the cinema vrit filmmaking style, was most prolific in 1960/70s French filmmaking and/or Direct Cinema films. Although the terms are often used interchangeably, cinema vrit and Direct Cinema are two distinct documentary film sub-genres. Direct Cinema rose from the French film movement of the 1960s that strove for candid realism by showing people in everyday situations with authentic dialogue (11.)

Influenced by documentary filmmaking and Italian Neorealism, the method produced examples such as Jean Rouch’s Chronicle of a Summer (1961) (12.) and Chris Marker’s Joli Mai (1962). (13.) A similar movement in the U.S, captured the reality of a person or an event by using a handheld camera to record action without narration, as in Frederick Wiseman’s Titicut Follies (1967) (14.) and the Maysles brothers’ Salesman (1969) (still .03)(15.) (still .03) There are subtle yet important differences among the terms Direct Cinema and cinema vrit. Direct Cinema is largely concerned with the recording of events in which the subject and audience become unaware of the camera’s presence. Direct Cinema is essentially what is now called a fly on the wall documentary. Originating in the late 1950s, Direct Cinema was made possible by the advent of lighter, more portable cameras, which could be hand-held and operated with a very small crew.(16.) This lean shooting style allowed filmmakers to change locations and camera angles easily and spontaneously, which resulted in a degree of intimacy never before seen on screen to date. The Direct Cinema filmmakers role involves not attempting to change the outcome of the events. He or she is filming in an observational context and ideally should not use the film to advance any type of political or social agenda. Direct Cinema filmmakers are generally interested in accurate reporting, regardless of the outcome. Cinma vrit, which means “Truthful Cinema”, combines naturalistic techniques with stylized editing and camerawork. Scenes are sometimes staged and the camera is used to provoke subjects. (17.) It is also known for taking a provocative stance toward its topics. 13

Cinema vrit filmmakers, while still interested in the recording of true events, typically have an agenda in their work, which sets them apart from Direct Cinema. Michael Moores documentaries Roger and Me (1989) (still .05) and Bowling For Columbine (2002) are examples of modern cinema vrit. (still .04) (still .05) In recent years, these types of movies have often featured the filmmaker himself, as in the case of Borat! (still .04), taking part in the action onscreen. Cinma vrit involves stylized set-ups and interactions between the filmmakers and their subjects, even to the point of provocation, which in the case of Borat! will become apparent. The presence of the filmmaker and camera is used as a tool in a way to reveal the truth from the subject. The camera is obviously apparent and always acknowledged. It performs the raw act of filming real people and events in a confrontational and sometimes absurd way. This raises interesting questions about the illusion of cinema, while faced with these styles of filmmaking, the audience is forced to confront the paradox of the truth claim in documentary cinema by mixing direct documentation 14

(fact direct cinema) and reenactment with characters playing themselves (fiction cinema vrit) in order to suggest that perhaps they are one in the same. The cinema vrit filmmaker acts as the catalyst of the situation. A much discussed example of cinema vrit would be the film that will become the topic of discussion throughout the course of this thesis Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan (2006) directed by Larry Charles and starring Sacha Baron Cohen. It is hardly surprising that documentary and mockumentary films present ethical problems, in relation to the royalty to the original artistic concept and vision of the filmmakers, to the audience as a willing participant and, of course, the filmed subject as the focus basis of the film. In order to regulate all parties, production companies operate from a code of ethics rather then a strict legal binding. Ethics are important, because they give people a shared basis of understanding in relation to the concepts of right and wrong. When the public is involved, it helps the filmmakers to have a ready understanding of how to react to a certain situation if some dilemma should arise. A Code Of Ethics is essentially a set of guidelines that are designed to set out acceptable behaviours for members of a particular group, in this case filmmakers. Generally, production companies and film crews govern themselves with a code of ethics, especially when they handle sensitive issues like likeness rights, taking the subjects life situation into the equation and interactions with other cultures. In addition to setting a professional standard, a code of ethics can also increase confidence in an organization by showing outsiders that, members of the organization are committed to following basic ethical guidelines in the course of doing their work.(18.) 15

The Code primarily consists of four overall ethical principles, Respect, Competence, Responsibility and Integrity. In relation to the respect for the rights and dignity of the person, this principle requires of filmmakers treat their clients as persons of intrinsic worth with a right to determine their own priorities, that they respect clients’ dignity and give due regard to their moral and cultural values(19.) Film makers should take care not to intrude inappropriately on clients’ privacy and as far as possible, they shall ensure that clients understand and consent to whatever professional action they propose. The second point is that of competence. Filmmakers must constantly maintain and update their professional skills and ethical awareness.(20.) They should recognize that the knowledge of their own expertise and capacity for work are limited, and take care not to exceed the limits. The third point is responsibility. In their professional activities, filmmakers are required to act in a trustworthy, reputable and accountable manner towards clients (subjects) and the community. They shall avoid doing harm to clients and research participants, and act to prevent harm caused by others. (21.) They should act positively to resolve ethical dilemmas and they should also ensure that those whom they supervise act ethically. Finally the fourth point is integrity. Filmmakers are obliged to be honest and accurate about their intentions, the effectiveness of the services that they offer, and their research findings. They are expected to treat their subjects in a fair, open and straightforward manner, honour professional commitments, and act to clarify any confusion about the subjects role or responsibilities. Where possible, they shall avoid the use of deception with research participants. They shall not use the professional relationship to exploit clients, sexually or otherwise, and they shall deal 16

actively with conflicts of interest. They shall take action against harmful or unethical behaviour in colleagues or members of other professions.(22.) When considering the production of either a Cinema Vrit or Direct Cinema film, it is important to weight in the moral and ethical dilemmas that the filmmakers must deal with in relation to the subjects of the proposed film. Whereas the Code Of Ethics serves to provide civic guidelines, the consent form acts as the legally binding part of the agreement. A consent form is A document explaining all relevant study information to assist the study volunteer (subject) in understanding the expectations and requirements of participation in a (filming) clinical trial. This document is presented to and signed by the study subject. (23.) A consent form is only relevant when signed under informed consent by the subject. Informed Consent is typically a medico-legal term when referring to medical practice, it is a form signed by the patient (or in this case: subject) for the benefit of the surgeon (filmmaker) to perform treatment (filming). By signing a consent agreement to filming, the subject is stating that he or she is fully aware of his or her condition and understand the reasons why filmmaking is taking place and that he or she has agreed to that being carried out. The opposite of informed consent is informed refusal, in which like the consent acceptance, the subject in this case may also choose to refuse. Another aspect of the ethical guidebook be to considered with in the role of cinema vrit or Direct Cinema filmmaking is the maxim known as The Golden Rule or Ethic Of Reciprocity that essentially states that One should treat others as one would like others to treat oneself (24.) OR one should not treat others in ways that one would not like to be treated (negative form which is also called The Silver Rule.) 17

The Golden Rule is arguably the most essential basis for the modern concept of human rights, in which each individual has a right to just treatment, and a reciprocal responsibility to ensure justice for others. A key element of the Golden Rule in relation to documentary filmmaking is that the filmmaker, while attempting to film ethically treats their subjects with consideration, not just members of their crew. The Golden Rule is a moral and ethical guide; it is important to note that it is not strict legal merit. An objection to the Golden Rule is highlighted by Paul Treanor on his website, as he implies That I should transfer my perspective to the person affected, the one standing in front of me who will be affected by my action. But behind them may be another, who is affected by the person standing in front of me. (25.) These points have been highlighted in this chapter to give a wider insight into the ethical minefield that is taken on when entering into any practice with others from a professional and personal standpoint. As previously stated, these ethical codes have no legal bearing, but are relevant to all filmmakers when they engage with social actors for the purpose of making a cinema vrit or Direct Cinema film. It is the responsibility of all involved in the project to present a truthful and sincere front from the start. In the case of Borat!, the disagreements before and after filming from unwilling participants will highlight the misuse of these ethical codes and the results, both positive and negative.

Chapter Two

Subject Vs Artistic Vision The Ethical Responsibilities Of Borat! In Relation To Acquiring Consent From The Subject

Within the context of mockumentary filmmaking, much like that of sincere documentaranians, the public are treated as social actors rather then fiction film performers. These subjects remain culturally relevent players. Their value as players resides not in the way they play a part but in a way their everyday behavior serves the needs of the filmmaker. But the question of garnering consent whether it be informed consent or consent defence, is an ethical maelstrom and this point is proven by the film Borat!. A film which managed simultaneously to offend Kazakhs, frighten Jewish Anti-Defamation Groups, annoy hypocritically thin-skinned Americans and spark off wide debate about its meaning and interpretation. Each filmmaker, production company and subject relationship works according to personal guidelines established either face-to-face or pre-organised and with mutual consent from each party.

Precedents of ethical guidelines can only work to persuade the actions, so that each party is fully informed of the subject matter, representation and potential response of the subjects actions within the documentary which is done by acquiring informed consent. In the case of Borat! a variety of SLAPP cases have been brought against the filmmakers. The term Strategic Lawsuits Against Public Participation, known by the acronym SLAPP applies to a variety of different types of lawsuits, including those claiming libel, defamation, business interference, or conspiracy.(26.) Within the context of the film, the titular character Borat Sagdiyev is said to be from Kazakhstan. The Kazakhstan used in the film is a heavily fictionalized and satirized depiction of the former Soviet state. However, as it states in the (SLAPP) Defendants special motion to strike complaint record. Alarmed by the reportage of its fictitious reporter, the government of Kazakhstan launched a massive public relations and diplomatic offensive, emphasizing its commitment to human rights and gender and 20

equality (27.) going so far as to release a four-page advertisement within the pages of The New York Times and to set-up presidential visits to the White House and 10 Downing Street. (still .06) Upon the release of the film the foreign ministry spokesman, Yerzhan Ashykbayev, told a news conference We view Mr. Cohens behaviour as utterly unacceptable, being a concoction of bad taste and ill manners which is completely incompatible with the ethics and civilized behavior of Kazakhstan people. (28.) Shortly before the release of the film too, the right to use the domain name www.borat.kz was suspended, and the site attached was closed down due to the site being hosted outside Kazakhstan and hosting false names.(29.) Kazakhstan was never actually filmed for the purpose of Borat! but rather used solely in namesake. Nicolae Todorache and Spiridom Ciorebea, residents of Glod, Romania, the village actually used to depict the satirized Kazakhstan (still .06), sued the filmmakers for 21

$30 million claiming they were misled into thinking they were participating in a documentary about the village’s poverty and the rich heritage and belief system upheld by the inhabitants. Alan Rosenthal author of New Challenges In Documentary (1988) writes Consent is flawed when obtained by the omission of any fact that might influence the giving or withholding of permission. (30.) However, it is important to also state that the subject must not have been put under any pressure (coercion) to sway their decision, and that they reached a decision based on their full comprehension of the situation. So provided that those being filmed give their consent, where is the unethical behaviour? The morality lies in how the subjects are represented. The villagers in the town of Glod feel they were specifically targeted and portrayed in a negative manner and the lawsuit was filed on behalf of their entire village and Mr. Todorache, a one-armed man, who was seen wearing a sex toy attached to his stump at the filmmakers request.(31.) The method of obtaining consent is stacked in the filmmakers favour. Rosenthal adds The ethical problem raised by such approaches is that they give the potential subject no real choice; the initiative and momentum of the situation favour the filmmaker. The presence of the film crew with official sanction is subtly coercive(32.). The film crew and equipment are all intimidating to be faced with for the person who has approached for the comment. The notion of consent defence, is another popular argument raised by Brian Winston in Lies, Damn Lies And Documentaries. He states, any measure of dubious or even unethical behaviour is justified after the event by the existence of the contract signed by the participant, the release form (33.). These agreements are in defiance of those who take the BSC Codes view (The BSC Code helps by providing a 22

framework of guidance into which, particular needs can be fitted,(34.) The guidance is for the general use of the professional consent defence for people (except minors or the mentally incapacitated) do know what they are doing. Coercion outside the law has expanded its meaning to embrace the idea of compulsion without physical treat. Often the consent defiance could be defended where the subject was uncomplaining or even benefited from their experience. But as Richard Andrew Hall states Did Baron Cohen really have to cross the pond to find such disturbing stereotypes?(35.) Surely, it would not be hard for him to find typical examples of racism in any other major ethnicly shared cities anywhere else in the world. So too, the film depiction of its anti-Semitism has also come into great debate amongst critics, audiences, the media and especially the Anti-Defamation League of America (ADL). The Anti-Defamation League, founded in 1913, is the worlds leading organization fighting anti-Semitism through programs and services that counteract hatred, prejudice and bigotry towards Jewish people (36.). In one particular scene from Borat!, we see the titular character at a rodeo in Texas, performing a song directed towards Jewish people entitled In my country there is a problem that called on people to throw the Jew down the well, warning the public you must be careful of his teeth and that you must grab him by his horns to the delight of some members of the audience (still .07). 23

(still .07) While the ADL openly acknowledges that the film is a satirized and farcical characterization, they do state in a formal letter of warning to the filmmakers We are concerned that one serious pitfall is that the audience may not always be sophisticated enough to get the joke, and that some may even find it reinforcing their bigotry. (37.) Richard Andrew Hall states … Baron Cohen heavily concentrated on the genuinely powerful, whether celebrities or those with money and power, but in Borat! he clearly started sliding towards pulling the piss out of more average citizens. Perhaps this is where he crossed the line. (38.) In 2005, a lawsuit was filed against the makers of the film and 20th Century Fox on behalf of two unsuspecting fraternity boys who claim they were duped into appearing in the spoof documentary. (39.) They were identified in the movie as fraternity members from a South Carolina University, and appeared drunk as they made insulting comments about women and minorities to Cohen’s character. 24

The SLAPP lawsuit claims that in October 2005, a production crew took the students to a bar to drink and “loosen up” before participating in what they were told would be a documentary to be shown outside the United States. They were induced to agree to participate and were told the name of the fraternity and the name of their school wouldn’t be used. After a bout of heavy drinking, the plaintiffs signed a release form they were told “had something to do with reliability issues with being in the RV,” their lawyer Oliver Taillieu states. (40.) The film “made plaintiffs the object of ridicule, humiliation, mental anguish and emotional and physical distress, loss of reputation, goodwill and standing in the community.” (41.) Although legally the participants have agreed to signing the consent, under the plaintiffs testimonies, it would appear that the filmmakers had intentionally duped the college students into appearing in the film with full, informed consent and it is impossible to defend the subject matter and opinions that the subjects raised while drunk, however, the filmmakers should be held accountable for putting the fraturnity boys in that situation and for provoking the racist and sexist responses they got. The filmmakers had knowingly overlooked the ramifications of the subjects actions on their lives after the films release and are guilty of negligent infliction of emotional distress. If the participant is fully aware of possible consequences and sees co-operation as a coherent political strategy, then the burden of the ethical dilemma has been lifted from the film-maker by the participant for his or her own ideological reasons. (42.) The Polish author of the blog Beatroot captured this well in a post on the Movania guidebook entitled Why is it that the only people liberals think its OK to laugh at these days are the white working class and Central and Eastern Europeans?(43.) In 25

the article he comments If this (sort of book) had been written about … African people then, quite rightly, there would have been uproar and outrage. (44.) But it seems that Political Correctness extends to all groups these days except poor whites from urban, rural or semi-rural areas in America and Europe As Andrew Mueller notes in his review of the movie for Uncut MagazineWhat astonishes me about every Amercian he encounters is not their naivete, but their politeness, hospitality and the extraordinary degree to which Borat has to inflame situations to provoke reaction.(45.) Cynically, the consent form is simply a safeguard device or get-out-of-jail-free card, wheeled out by the filmmakers, against future lawsuits and liability. Production companies will claim that they ensure the participant is not being misled or manipulated by the filmmakers. Many times the consent form is a bureaucratic, legalistic detail, intent on absolving the production companies of responsibility. There to dissipate any whiff of coersion, it should not be used as a licence to knowingly take advantage of the everyday person. To weigh the ethical ramifications on a piece of paper is morally and ethically wrong.But they are also there to defend the filmmakers against the actions and reactions of the subjects and are predominantly responsible for some filmmakers avoiding litigation. The vast effects that the documentary could have on the lives of the subjects should be taken into account and not just betted against the contract. At the end of the film, it seems that in the case of Borat! that the usual disclaimer included at the end of the films credits states that before being considered for appearance in the film, all potential participants were required to sign long release forms, agreeing not to take legal action for any defamation of character or fraud 26

carried out during the films production. It states that all characters were fictitious, and also noted that no real person depicted or appearing in the film has sponsored or otherwise endorsed its contents. Before and following the universal release of the film in 2006, seven lawsuits had been filed against the production company, Baron Cohen and filmmakers for amongst others fraud, rescission of contract, common law false light invasion of privacy, statutory false light, appropriation of likeness and negligent infliction of emotional distress.(46.) 27

Chapter Three

The Artistic Vision Vs The Subject In Reference to Borat! and The Use Of Humour to Expose Social Stereotypes and Bigotries. 28

As previously discussed in Chapter One, the Code Of Ethics acts as an ethical guideline for filmmakers, when it comes to such issues as garnering ethical consent or the valid use of likeness rights from a subject and the use of the public for the proposed project in a fair and informed manner. In this chapter I explore and reveal examples within the context of the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan (hereafter Borat!) of intentionally overlooking these so-called guidelines for the sake of making a work with the artistic vision and integrity solely taking the forefront of the creative process. Despite a limited initial release in the United States, the satire was a critical and commercial success. Baron Cohen won the 2007 Golden Globe Award for Best Actor: Musical or Comedy, as Borat, while the film was nominated for Best Motion Picture in the same category. Borat! was also nominated for Best Adapted Screenplay at the 79th Academy Awards. On its release, Borat! boasted the highest-grossing opening ever for a picture playing at less than 1,100 theaters.(47.) Firstly, it is important to realize that there is public global interest in speech and opinions (such as the afore mentioned examples, previously discussed in Chapter Two) about American cultural values and attitudes towards anti-semitism, racism and sexism. Borat! as being part of a tradition of exposing and critiquing these American bigotries through the use of humour, seeks to expose these attitudes in their most debased forms and present them to the world an