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‘Neverland’ Ethics Questioned as Michael Jackson Lawyers Speak at Documentaries Panel

The controversy over HBO’s “Leaving Neverland” is part of a bigger debate that goes back a good century. Film scholars have been arguing about the reality, truth and objectivity of the documentary film since at least Robert Flaherty’s pioneering 1922 epic “Nanook of the North,” and probably all the way back to Thomas Edison’s “Sneeze” kinescope, according to International Documentary Association director Carrie Lozano.

Lozano was one of the panelists for “Truth Be Told? Documentary Films Today,” a discussion that brought together two rival schools as sponsors; the UCLA School of Law Ziffren Center and USC Annenberg School for Communications and Journalism combined forces to co-host the event Tuesday night on the UCLA campus.

Moderated by UCLA School of Law’s First Amendment expert Dale Cohen (pictured above, left), the panel also included powerhouse entertainment lawyers John Branca (above, center) and Howard Weitzman — both embroiled in the controversy over HBO’s “Leaving Neverland” in their roles representing the estate of Michael Jackson — along with veteran director Taylor Hackford (wife Helen Mirren was an interested observer) and USC Professor of Communications Christopher Smith.

Branca drew chuckles when he declared, “I’m an impartial observer whose point of view is not related to any particular documentary,” then launched into his own complaints about the controversial HBO documentary which included graphic testimony about underage sexual encounters with Jackson. “Testimony is presented as fact,” he explained. “No other side is presented. The director [Dan Reed] even said he had no interest in talking to anybody else.”

Weitzman echoed Branca’s argument. “The idea of offering fair and balanced views doesn’t play in the media business today,” he said. “The only true reality TV where the outcome is unknown is a sporting event.”

With the success of Oscar-winning music documentaries like “Searching for Sugar Man” and “Twenty Feet from Stardom,” it truly is the golden age of nonfiction film. With success, though, come legal difficulties. The estate of the late rapper Mac Miller just pulled the plug on a planned documentary. In dealing with deceased artists and their estates, one of the problems  — or benefits, depending on your vantage point —  is that defamation laws only apply to the living.

“The purpose of the First Amendment is supposedly getting at the truth, but the lack of defamation protection for an individual no longer living isn’t helpful in that regard,” states Branca. “If copyright protection is life plus 75 years, there’s no reason a defamation suit shouldn’t be life plus 20, 30 or even 40 years.”

When asked by a student why the Jackson legal team didn’t pursue this issue to the Supreme Court in an attempt to get the law overturned, Weizman shrugged: “We definitely talked about it, but ultimately decided it wasn’t a good expenditure of time or energy. But it is something, long-term, I would be interested in doing, not just for Michael Jackson, but everybody.”

The doc talk was hardly all downbeat. UCLA School of Law Dean Jennifer Mnookin called this era “documentary films’ cultural moment,” stating, “Their role has been expanding into an ever more central part of contemporary media culture on television, streaming services and even in theaters. The public’s appetite for these untold stories and the filmmakers’ perspective is stronger than ever. Documentaries can change the way we see the world, unpack how we can understand wrongful convictions, but they can also lead to misunderstandings by approaching different subjects in both constructive and problematic ways.”

Christopher Smith, a USC professor who specializes in the intersection of media, economics and entrepreneurship, attributes the current rise in documentaries to what he dubbed “the age of testimony,” pointing to Claude Lanzmann’s groundbreaking 1985 10-hour-plus Holocaust epic, “Shoah,” as a landmark in this area. The film, “driven not by archival footage, but anecdotes from survivors,” proves a clear forerunner to today’s #MeToo and #TimesUp confessionals, not to mention the two subjects — Wade Robson and James Safechuck — in “Leaving Neverland.”

Addressing the notion of objectivity in documentaries, Taylor Hackford (above, right), who has directed a documentary on Chuck Berry (“Hail! Hail! Rock ‘n’ Roll’”) and biopics on both Ray Charles and Muhammad Ali, says it’s impossible for a filmmaker not to have a specific point of view. Two of his favorite documentaries, both of which he programmed while working at KCET, are Emile De Antonio’s “Point of Order,” a 1964 film which traces the downfall of Senator Joe McCarthy’s Communist witch hunt of the ‘50s through CBS’ TV coverage of the congressional hearings of the time, along with D.A. Pennebaker’s 1967 cinema verité vision of Bob Dylan’s U.K. tour, “Don’t Look Back.”

“’Point of Order’ was testimony presented in such a way the audience was able to experience the emotion of the moment,” he said, pointing to Michael Moore’s partisan political docs as a modern-day example. “Pennebaker managed to show all sides of Dylan, the brilliant genius as well as the pompous prick.”

Jackson’s attorneys emphasized that there was nothing multilayered about “Neverland,” though. Branca suggested the media have been prejudiced against Michael Jackson since at least the mid-‘80s, and that it’s hard to combat the “fake news” in “Leaving Neverland” when journalists fail to take into account that both of the individuals are suing the estate for what they describe in the movie as having happened.

“I was a big fan of Elvis Presley,” Branca said, before pointing out that Presley began dating his wife-to-be, Priscilla, when she was 14. “John Lennon beat his first wife, but he wrote ‘Imagine,’ so we deify him. Now we’re about to hear stories about Martin Luther King, Jr.  Does their personal life make it impossible to enjoy their artistry?

“It’s like what James Baldwin once wrote (about how) Michael Jackson will forever pay the price for being as successful as he was. There’s a large segment of the press that doesn’t care whether Michael is innocent or guilty because it’s not controversial enough. In the end, I really believe it’s a form of racism.”

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