New Delhi: This year was a historic one for India at the Academy Awards. While RRR came on top in one category, two documentaries — All That Breathes and The Elephant Whisperers — fought tooth and nail, with the latter receiving the iconic Oscar golden statue. But the subjects of The Elephant Whisperers, Bellie and Bomman, were nowhere to be seen.
Earlier this week, the mahout couple reportedly sent a legal notice to the makers of the documentary seeking a ‘goodwill gesture’ of Rs 2 crore from filmmaker Kartiki Gonsalves. They claim that the filmmakers had promised them a proper house, an all-terrain multi-purpose vehicle and an unspecified one-time lump sum amount as compensation.
The messy situation highlights the murky regulations around documentary making and the power dynamics between filmmakers and the subjects. With vague contractual obligations, lack of ethical clearances, and flexible intellectual property law, the discipline continues to be an unorganised domain in India.
Filmmakers who dedicate years to a project are heaped with praise and accolades. But the subjects are often left behind with nothing.
“I have grown up within a documentary film-making tradition that was based on relationships, not contracts — whether those relationships were with individuals or communities or movements,” says Sanjay Kak, a documentary filmmaker known for films like In the Forest Hangs a Bridge (1999), Words on Water (2002) among others.
Unlike feature films, contracts are not a mandate in the domain of documentaries in India.
“When there is an individual filmmaker involved, the project is often bootstrapped with no contract in place. But when the project is commissioned, all contractual obligations are followed,” says Josy Joseph, writer and journalist, who runs Confluence Media, a platform that makes documentaries, shows, and films based on real-life stories.
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Power dynamics
In recent years, the hunger for non-fiction has grown and grown, and the rise in its popularity has bolstered audiences. And this has made the need to untangle the relationship between the filmmaker and the subjects all the more urgent.
The dilemma is the theme of the 2022 documentary Subject, which examines the ambiguous relationship. The film, produced by London-based Dogwoof, explores the ethical responsibilities filmmakers face when they decide to capture people, often at their most vulnerable, thereby forever framing a moment in time that will live on through the ages.
“The subject is there for us to manipulate for the ends of the film,” Assia Boundaoui, Algerian-American filmmaker, was quoted as saying in the documentary.
Last year, when the documentary Writing with Fire made it to the Oscars, the subject — media organisation Khabar Lahariya — claimed that the film had inaccurately depicted the rural, women-led collective as having “a particular and consuming focus of reporting on one party”.
The regulations or state of affairs for documentary filmmaking in India are not as transparent.
“We would hear of foreign film crews whipping out ‘consent forms’ to get slightly puzzled people to sign them, and wonder who exactly this bit of paper was meant to protect – the subject of the film? Or the production company that was doing the project?” says Kak, underlining that only a genuine relationship can form the essence of what constitutes a moral and fair transaction between subject and filmmaker.
He is also quick to point out that things can go wrong when there is a power imbalance between the two sides, especially when it comes to working with marginalised communities.
“There is every chance that things will go wrong unless the filmmaker is cautious and works hard to bridge the gap,” he adds.
Biju Toppo, a national award-winning tribal documentary filmmaker based in Jharkhand, has never dealt with contracts with the subjects of his films. However, he agrees that considering that he is able to relate with his protagonists — predominantly marginalised indigenous communities — it is easier for him to strike a balance between a filmmaker and his personal equation with them.
“Most of my documentaries revolve around the themes of ‘Jal Jangal Jameen’. Having a personal stake in the matter, especially when the subjects are aware of it too, helps in scaling any project,” he says.
Legal aspect
Oftentimes, the nature of the project determines the legalities involved. According to Anish Chandy, who runs Labyrinth Literary Agency—a Delhi-based firm that represents authors of real-life stories to publishers and production houses—there is no one-size fits all solution.
“Is it an authorised or unauthorised adaptation? Is it based on some other kind of intellectual property like a book or are you acquiring life rights from the subject itself? Based on that, you proceed and negotiate if required,” says Chandy.
The unclear commercial prospects of non-fiction film projects drive the decision.
“Oftentimes, paperwork is not in place because typically commercial prospects of documentaries are not very clear. People tend to not work out these clauses on paper and a lot of verbal communication takes place,” adds Chandy.
The onus also falls on the absence of stringent intellectual property (IP) laws in India. If people feel a small sense of shared purpose, they come forward, share and even take risks. There is no guarantee as to whether their rights will be protected after the product comes to fruition.
“In India, IP laws are still evolving. In the West, they are very strict about appearance permits to life rights, all these are governed by strict laws. There is a need for Indian jurisprudence to improve keeping in mind the fact we need to provide creative freedom to artists,” says Joseph.
It’s also possible for the subject to change their point of view as the film goes to international circuits or the stakes are higher. They might feel left out when filmmakers win accolades.
“They [the subjects of documentaries] are probably thinking about all those tuxedos, champagne glasses, and audiences with the Prime Minister, which was clearly not on the agenda when the film was being made,” Kak adds.
(Edited by Theres Sudeep)