This note reports on the initial injunction granted by Slattery J in favour of Dame Kidu, a participant in director Hollie Fifer’s debut documentary “The Opposition”. For Part 2, reporting on the subsequent trial judgment dismissing the injunction, click here.
An interlocutory injunction granted to prevent the imminent overseas screening of a documentary demonstrates that participant releases commonly used in the film industry are not failsafe.
On 22 April 2016 Dame Carol Kidu, a former PNG politician, injuncted the filmmakers Hollie Fifer and Media Stockade Pty Ltd from using a substantial amount of footage in their feature documentary, The Opposition, at the Hot Docs Canadian film festival pending trial. The interlocutory judgment was granted by Justice Slattery in the Supreme Court of New South Wales in Kidu v Fifer & Ors  NSWSC 488. The court found that an initial conversation in March 2012 between Ms Fifer and Dame Carol about her participation could constitute an “oral contract” restricting use of footage to Ms Fifer’s student film project, where the film originally began.
Significantly for film producers, this interim finding was made despite Dame Carol having subsequently signed a “standard” participant’s release permitting exhibition, distribution and publicity of the film.
Dame Carol Kidu is a former opposition leader of the Papua New Guinea parliament. In 2012 she agreed that a young filmmaker, Hollie Fifer, could interview her for what was then a student film project. Dame Carol was then in her final months of her distinguished PNG political career.
Dame Carol signed the written “standard’ participant’s release consenting to be interviewed for the project in 2012. As is usual no fee was paid. The document released a “production” with the working title “The Opposition” and permitted the standard set of production activities including the right to “distribute” and “publicise” the “acts and appearances of the participant”.
After signing the release Dame Carol invited Ms Fifer to film her in PNG. At this time, Ms Fifer captured some footage of a protest against an eviction of local residents to make way for a five star hotel. The footage shows Dame Carol protesting strongly against the bulldozing of a house.
In March 2014, following a court case won by the developer against the residents, Dame Carol was engaged by the developer to assist with relocation of the residents.
“Retraction of consent”
Dame Carol’s reservations about the film appear to have arisen in May 2014. She became aware that the film had been selected to be featured at a film event called Good Pitch 2 Australia and that it depicted Paga Hill community leader Joe Moses in a “David and Goliath” battle against the developer. She subsequently wrote an email formally “retracting consent” for the use of footage of herself. She attended a rough cut screening in July 2015 and a final cut screening in August 2015, but was upset by both screenings and sent objections to the filmmakers.
Dame Carol brought these proceedings after becoming aware that The Opposition had been selected for screening on 28 April 2016 at the Hot Docs festival in Canada.
The court case
Dame Carol sought an injunction against the use of her interviews shot for the film on the grounds of breach of contract, promissory estoppel and unconscionable conduct.
Dame Carol claimed that:
- she had only agreed to participate as a favour to Ms Fifer’s mother;
- Ms Fifer had represented to her that the film was a student film which would not be publicly exhibited or commercially distributed;
- she did not know that the controversy over the development at Paga Hill would be central to the film; and
- Ms Fifer had represented to her that the film would focus on her career.
The defendants denied that they had misled Dame Carol and claimed that she was aware that the project had received funding for commercial distribution. They offered to insert a disclaimer at the end of the film indicating that Dame Carol disassociated herself from it.
Dame Carol sought orders that the interviews she gave, other than material already on Youtube, be excised from the film. This would amount to 20 minutes out of a 75 minute film. However, the defendants contested that they would not have sufficient time or money to make such significant cuts in advance of Hot Docs and that such an order would therefore effectively prevent the screening, with the loss of significant potential distribution revenue.
The court found that while there was evidence given to support each sides’ version of events, there was a “serious question to be tried” regarding Dame Carol’s claims. He acknowledged that the issues of whether the oral “contract” existed, and whether the release was legally binding, would be in contention should the matter proceed to trial. His Honour thought that the balance of convenience favoured granting the injunction to preserve the status quo pending trial.
The defendant argued that this was really a defamation case dressed up as breach of contract. Defamation injunctions are rarely granted, as principles protecting freedom of speech have developed in this area of law to protect the right to publish and risk damages. However, Justice Slattery rejected this assertion. Instead, he addressed freedom of speech concerns by confining the injunction only to the unpublished footage of Dame Carol, and required her to provide $250,000 in security to compensate the defendants for potential lost distribution revenue in the event that she ultimately loses at trial.
The matter is to return to court soon to determine dates for trial if it does not settle.
Implications for filmmakers
The Kidu case confirms that standard releases are not a magic bullet to secure the cooperation of a participant or stave off an injunction against publication. Whether a release has been signed or not, it appears that an unhappy participant may still disrupt publication plans if they can show evidence that they were misled about the nature of the production. This begs the question of whether standard form participant releases now commonly used in the film industry are worth the paper they are written on.
Written participant releases for film projects tend to be fairly short and simple. They are usually regarded as evidencing the terms of consent, rather than constituting a proper “contract”. However, it is generally thought that a written release is not easily “revocable” at the will of the participant, particularly once the film is complete, and for this reason they are now an entrenched requirement of funding bodies and many distributors. Whether or not the release used in the Kidu case is ultimately found to be legally binding at trial, it was not enough to prevent an injunction being granted. The question is then whether such releases are useful.
One option might be not to use them at all, as is the practice in news and current affairs programs. If third party funders don’t require written releases to be used, this approach may be worth considering in some projects.
However, a safer approach legally speaking would be to ensure the participant gives fully informed binding and irrevocable consent with the opportunity of obtaining professional advice. As far as possible, reliance on any prior conversations or representations would be excluded. This could be done by using a longer form contract similar to those commonly used when engaging reality tv contestants or professional talent or in the US, a “life rights agreement”. While this approach may not be appropriate for every kind of project, it may be worthwhile insurance in some circumstances, such as where a participant’s contribution and support is crucial, or for higher budget projects. Such an approach would have the advantage of minimising exposure to disruptive threats of legal action to the producer, and of clarifying the rights and expectations of the participant.
For an update on the case and tips for obtaining releases, click here.
This post is not legal advice. For advice on your particular query, please contact me.