When we covered West of Memphis on its festival circuit at the beginning of 2012, we spoke with director Amy Berg. As sometimes happens with festival interviews, it didn’t run until after the film’s theatrical release on Christmas Day. One of my questions to Berg was whether Joe Berlinger, director of the first series of films on the West Memphis Three case, cooperated with her film using clips from the Paradise Lost movies. Berg was unsure of the specifics at the time but guessed that he did not provide clips, so they went with fair use laws. "Can I get back to you on that? We had to fair use it. They said no," said Berg. "They didn’t let us license the footage but I want to make sure that I’m not saying the wrong thing because that is a legal thing. We requested it, they said no and so we had a fair use claim put in by our attorneys."
Once we published the interview, Berlinger himself saw the interview and wanted to respond to that comment. Berlinger directed the three Paradise Lost films with Bruce Sinofsky, and took time out of his holiday week to speak about the Paradise Lost clips, revisit the trilogy and touch on the differences between his films and West of Memphis.
Now that the festival circuits and theatrical releases are over, we had much more time with Berlinger to go into detail about where exactly footage in a documentary comes from. In the interest of full disclosure, our 55-minute conversation has been edited for a concise article, though the quotes are 100% accurate.
Paradise Lost chronicled the investigation and trial of Damien Echols, Jessie Misskelley, Jr. and Jason Baldwin for the murders of three children at Robin Hood Hills. Known as the West Memphis Three, they were released from prison last year, but had to accept an Alford plea to do so, pleading guilty for the reduced sentence even though new evidence showed they were not the killers. Much of that evidence was uncovered by an investigation funded by Peter Jackson and Fran Walsh, producers of West of Memphis and subjects featured in that film. You can follow the entire Paradise Lost trilogy now available on DVD in a collector’s edition, and available on digital platforms January 15.
CraveOnline: In fairness to Amy Berg, when I asked her about using clips from the Paradise Lost series, she wasn’t sure in her answer. We even debated whether or not to include that question, but felt her quote represented fairly that she wasn’t sure and was guessing. In the interest of clarifying the matter we’re happy to get your take. Can you shed more light on how clips from the Paradise Lost films ended up in West of Memphis?
Joe Berlinger: Well, she does say in your answer there that they asked permission and that we denied permission. That’s completely false. We were never asked. We were never asked permission, nor would we have denied them permission. If they had officially asked us, we would have provided them with clips, but we were never asked. Look, there is a whole body of law that says they can fair use the material, which means if you can demonstrate that the using of clips is newsworthy to your story, you don’t necessarily have to license them. Documentarians fair use clips all the time, but to say that she asked us permission and we said no is just not true.
So you were aware a new film by other filmmakers was being made, and no requests for clips came your way?
Correct, we were never asked, nor would we have said no. Over the years, we have given clips to anybody who’s asked because we felt we can’t monopolize somebody’s tragedy. We, the Paradise Lost filmmakers, were the only filmmakers covering the original trial in 1993. Obviously there were newsgathering organizations there, local media, but we had arranged for cameras in the courtroom. It was our negotiations that got those cameras in the courtroom. There was one pool camera, [which was] a media pool camera, and one Paradise Lost camera. So any of those frontal angles of the judge or a frontal angle of the witness or the side view of the jury is actually Paradise Lost owned material. We’ve always been very generous. We gave that footage to the defense and for years the defense used that footage to promote the case. Dennis Riordan, the lawyer who argues in front of the Arkansas Supreme Court, that lawyer in particular used a lot of our footage over the years to make presentations at various law schools and press conferences to popularize the case. We also gave that footage to the WM3.org people to put online. Their site now has been taken down but we’ve made that footage available to anyone who wants it, including other media outlets wanting to tell the story. Larry King did an hour special, Anderson Cooper, Dave Mattingly, the BBC, the Discovery Channel. We’ve always been very generous about giving out footage and information because we were in this not for owning the story but for doing whatever we could to popularize the case and to help the way we could, which was to share the story with people.
That aspect of the courtroom footage is illuminating to me because I took that for granted. When I asked about clips from Paradise Lost, I was thinking of footage when Damien Echols, Jason Misskelly, Jr. and James Baldwin were teenagers, footage that existed from your movie. Some of the courtroom footage was yours too?
Well, let me clarify. There was one pool camera, one camera that the media all shared. There was no national coverage there other than HBO.
That was the footage given to anyone doing a report on the trial.
Correct, that’s the pool camera and that angle was the judge’s point of view. So any shot that is the judge’s point of view looking out into the courtroom, that was the media’s camera and there’s plenty of that footage in West of Memphis. But any frontal shot of a witness, any camera that is shooting the judge from the front looking at the camera or any shot that is shooting a witness on the witness stand that is looking at the camera, the witness looking at the camera, or a side shot of the jury – because we were positioned behind the jury box looking towards the witness stand and the judge’s bench – that was exclusively shot and owned by the Paradise Lost camera. A lot of that footage has been put out into the ether by us over the years because we’ve never wanted to hog that footage, but technically speaking it’s footage that is owned by us. I am not saying that they used our footage illegally. Many documentarians rely on this fair use doctrine. The reason you always want to try to license the footage versus just using it for fair use is, first of all, if HBO wanted to go after them, they certainly have the clout to do that. You don’t always win on fair use. Secondly, the quality of that footage is not very good. If they had asked us permission and we had granted them a license, we would have provided them with a first generation master so that the quality of the imagery would have been significantly better instead of them relying on the many, many DVD copies that we have given out over the years that have ended up on the internet. So they would’ve gotten better quality footage by licensing, but we were never asked and we certainly didn’t deny permission.
Thank you for clarifying where Paradise Lost stands on the use of clips. Now let’s use this opportunity to talk a bit more about the Paradise Lost films.
Right, I’m not out to do an article that bashes West of Memphis. I was looking to correct a statement.
Now the trilogy is out on DVD?
Yeah, the trilogy just came out on DVD as a collector’s edition with a fourth disc with bonus material and a little booklet inside of it. On January 15th we’re doing the digital release of the three films. The films are going to be available on all digital platforms for the first time. They’ve never been available on iTunes or Netflix or anything like that because HBO has held back those rights, but now they’re going to be available digitally on January 15.
Paradise Lost 1 is really, maybe this sounds like patting ourselves on the back, but it’s a film that couldn’t be made today. What I find so extraordinary about that first film is that we just got access to everything. We put our cameras everywhere. This was just before Court TV was a household name. This was before the O.J. trial was a watershed event in the media where every salacious moment by moment of murders were covered by the media 24-7. This was before the 24-hour news cycle as we know it today. Back in ’93, particularly in rural Arkansas, people were just much more naive about what it meant to be making a film. Wherever we sought access, we got. We had all three families of the victims, all three families of the accused, the judge, the prosecution, all the defense attorneys. Trials in Arkansas were not televised. There were no cameras in the courtroom as an automatic rule, but because we had spent eight months embedded in that community prior to the trials, we were able to convince everybody to allow us to actually film that trial. That was the first trial in Arkansas to be filmed that anyone could remember. I think if this murder case happened in 2012, people would be much more media savvy. We would not have gotten the access. We would have been competing with every news organization on earth so I think that first film is really a time capsule and a fascinating example of getting access in a way that I think is not possible today.
I have tremendous regard for what Peter Jackson did. I think clearly there’s room for the Paradise Lost series and West of Memphis. They’re two very different kinds of experiences. The Paradise Lost trilogy represents objective journalism by people who are not the subjects and West of Memphis is one of the greatest examples of impassioned documentary advocacy I’ve ever seen. It is the subjects telling their own story and telling it from their point of view. The people who made the news, meaning Jackson re-investigated the case and he paid for that investigation and he paid for this film and it’s their point of view about what they did in this story, whereas the Paradise Lost documentaries are outside journalists not making the news, but covering the news as it was unfolding. Neither way is the better way to make films. They’re two very different experiences and the Paradise Lost series, in particular the first film, we arrived a few days after those guys were arrested in June of 1993, eight months before that first trial started and embedded ourselves in that community and went back and forth to Arkansas as it was unfolding for nearly two decades. I look at the Paradise Lost series as kind of immersive cinéma vérité documentary-making which means the action is happening before the cameras while it’s unfolding for the most part, particularly the first film. West of Memphis is a different kind of a film in that it is mainly told in hindsight, but has the benefit of 20 years of story to draw upon. The trilogy I think covers more characters than the specific focus of Damien, Lorri [Davis] and Peter Jackson telling their story but obviously West of Memphis goes more deeply into that point of view than the Paradise Lost trilogy does. That’s why I say there’s room for both. I think they’re strong companion pieces.
Do you see a Paradise Lost 4 at some point if there’s any more progress on their exoneration?
For me personally, I was 30 when we started making these films. My first kid was born during the editing of the first film. My second kid was born during the editing of the second film. My daughters are now almost 15 and almost 19 respectively. I feel like I’ve lived my adult life and my professional life in the shadow of this story and so I feel like my time is kind of done. Bruce Sinofsky, my filmmaking partner, and I, on the series we made a pledge to continue making films until they got out of prison and that’s what’s happened. They’ve gotten out of prison under less than ideal circumstances with this Alford plea. I feel like I’ve done my time on this and I’m not interested in doing Paradise Lost 4 for a lot of emotional reasons. I’m 50 now. It’s time to move on with my life. Of course on a personal level, I care what happens in the case. I’ve become particularly close with Jason Baldwin. He and I are about to embark on a project to help other wrongfully convicted people, so the space of wrongful convictions and the fight to continue to clear their names I certainly want to be a part of, but from a filmmaking standpoint, I’m happy to hand the baton off to the new generation of filmmakers who are extensively covering the story. Atom Egoyan wrapped theDevil’s Knot movie, which is coming out presumably at some point in 2013. Johnny Depp has optioned Damien Echols’ memoir Life After Death so that’s sure to be a movie. West of Memphis is out there. And on a practical level, it just feels like it’s a crowded marketplace for storytellers and I think our work on this series is done.
I was surprised when Peter Jackson announced he was involved with the case. As a filmmaker documenting this case for 20 years, what was your reaction when you heard Peter Jackson and Fran Walsh were getting involved? You were probably finishing Paradise Lost 3, right?
I actually had heard that Fran and Peter had seen Paradise Lost, were so moved by it that they decided to get involved as a result of seeing the film, but because they wanted to remain anonymous throughout that process, we could never get Peter to appear in Paradise Lost 3. If you go back and look at the news, they never officially acknowledged that they were on the case until after the guys got out on August 19, 2011. When those guys walked out of prison, that is when Peter Jackson officially announced that he had been part of the defense team. It had never been officially confirmed to us, although unofficially it had been. I thought it was amazing that he was putting his money where his interests were and really did a lot to reinvigorate the case. Most of the people who have gotten involved in this case – Johnny Depp, Natalie Maines, Eddie Vedder, the tens of thousands regular people, kind of the unsung heroes to me, the hamburger flipper at McDonald’s or the banker VP of Chase – all of these are real people I’m talking about, the regular people who started this movement right when Paradise Lost in 1996 went on HBO. There were the three WM3.org folks.
Kathy Bakken, Burk Sauls and Grove Pashley?
Exactly. Those guys and the regular people to me who blew me away that they created a website exactly when people were first beginning to use websites in that way. Back in ’96 the whole world of people finding each other with likeminded interests was relatively new. The creation of that WM3.org website coming out with the movie’s popularity, from ’96 until Peter got involved in 2005, it was really 10s of thousands of regular people from all walks of life who stepped out of their regular lives to get involved. To me those are kind of the unsung heroes of this story. But because Peter also saw Paradise Lost, so I’ve been told, that inspired him and Fran to get involved. I thought it was terrific. I don’t believe they started [actually shooting] their film until early 2010, and when that happened there was a little bit of friction between the two films because Peter and the filmmakers blocked our access from Pam Hobbs which was unfortunate since they had learned about Pam Hobbs through our films. But at the time, there was a little unnecessary friction between the two films but I’ve always assumed that Peter and Fran, because Echols was on death row, it wasn’t about films. They thought that they were acting in the best interests of Damien. So from an advocacy standpoint, I thought that the tremendous generosity and dedication of Peter in moving this case forward was welcome, helpful and tremendous. From a filmmaking standpoint I did feel like we were treated a little unfairly and that our toes were stepped on in a way that if the shoe was on the other foot, I’m not sure I would have acted that way. But on the other hand, I’m willing to acknowledge and have acknowledged that I think that they were acting in Damien’s best interest in whatever decision they made.
So there was friction between Paradise Lost 3 and West of Memphis that might have been underreported in the interest of serving Damien and the West Memphis Three?
Yeah, it was something that I didn’t feel like we should make a big deal about because at the end of the day, Echols was on death row and everybody was working towards the same goal of trying to exonerate these guys. I would have expected a different attitude to have been displayed towards the Paradise Lost filmmakers so that was disappointing that access was blocked, and it’s disappointing that Paradise Lost 2 is somewhat of a bad guy in West of Memphis. I think it’s unfairly characterized in West of Memphis. As I’ve said in the press during the past year, I think West of Memphis is an excellent film. It is a concise encapsulation of two decades’ worth of activity. It has the particular point of view of some of the key players. That’s fresh and different. I think the film acknowledges Paradise Lost as one of the inciting incidents but it also then slaps down Paradise Lost 2 in a way that it’s my only complaint about the film. I feel it unfairly tarnishes the Paradise Lost series because it doesn’t fully explain its point of view. The argument in West of Memphis and I think it’s delivered mainly by Peter Jackson is [quoted from West of Memphis,] “Even when Paradise Lost 2 comes out and they are presenting an alternative scenario, they're going to an equally theatrical possible perpetrator in John Mark Byers." [Quote verified on a screener DVD of the film.] Well, that’s an unfair criticism. Back in 1997, we weren’t inventing the suspicion towards Mark Byers. We were covering it. That suspicion pre-existed Paradise Lost 2.
In fact, what they don’t tell you in West of Memphis is that the forensic science of the time and the re-investigation – Peter Jackson’s efforts were not the first re-investigation of the case. It was obviously the most well funded and the most effective re-investigation of the case. But the previous re-investigation of the case mounted by WM3.org, Burk, Kathy and Grove, that forensic team and that criminal profiler thought that the wounds were human bite marks. So that shifted some suspicion to Byers because he had removed his teeth. That was the state of the investigation back in 1997 that we were reporting on as outside journalists, not the people creating the suspicion. What they also neglect to say in their quick criticism of Paradise Lost 2 in West of Memphis is that Paradise Lost 2 spends an awful lot of time with Byers allowing him to have his point of view to confront his accusers, and he takes a lie detector test that he passes. All of which to me feeds into the theme that you cannot judge a book by its cover. That’s precisely what Paradise Lost 2 was saying, is that you can’t just think Byers is guilty because he may be strange. He passed a lie detector test and he has his own point of view but as reporters, we are covering the story that there is suspicion towards that guy. I think West of Memphis is kind of unfairly criticizing us when in fact we are the people who brought the story to the table, the original story. It just seems a little ungracious to be criticizing the people who, if you go back to 1993, every media outlet was telling the story of devil worshiping teens gone awry.
In fact, one of the ironies of us spending three films and two decades on this subject is that HBO [when] sent us down originally, we were interested in the story of guilty teenagers because all the press reports were one sided. We didn’t realize it was one sided. We just saw press reports that made these guys out to be really guilty. When we showed up in town in 1993 at the beginning of this 20 year odyssey, the irony is that we thought we were making films about guilty teenagers. It was our investigative work, it was our uncovering of the story where we realized. Three months into it I had to place a call to Sheila Nevins at HBO and say, “Hey, I think this isn’t a story about guilty teenagers. I think this is a story about people who have been wrongfully arrested.” This is even before the trial. We are the media, the only media that said, “Hey, these guys have been railroaded.”
To try to tarnish the legacy of the Paradise Lost series, I’m totally open to criticism. It is a valid, interesting critical discussion that the forensic theory of human bite marks that felt very real in ’97 seems very wrong in 2012. That’s a legitimate discussion point, but I felt like the criticism of Paradise Lost 2 in West of Memphis is a little unfair. But hey, I’ve been quiet about it up until this point.
[Editor's Note: Joe Berlinger has asked to clarfiy the above statement as follows: "That’s a legitimate discussion point, but that is not what is raised in West of Memphis… West of Memphis just incorrectly asserts that we made Mark Byers the scapegoat because of his "theatrical" behavior, doing to Byers what was done to Damien… I felt like the criticism of Paradise Lost 2 in West of Memphis is unfair and inaccurate because it does not tell the full story and feels a little self-serving to chastise Paradise Lost 2."]
The other thing is the first thing the Jacksons did in their re-investigation was to buy the house of Mark Byers that he lived in in 1993, track down the truck he used and to test the floorboards and the pool and the jewelry shack that was right next to his pool, to test to see if there was any evidence. So clearly the Jacksons began their investigation thinking that Byers was also possibly a suspect. So to then criticize us in 2012 without fully telling the story, I thought was a little unfair.
Is this the first you’re speaking out about these frictions with West of Memphis?
I did want to end on a lighter note. Maybe you remember, but I was a big fan of your Blair Witch 2.
You were? You were the only one!
I gave you a very positive review when I wrote for Daily Radar, it actually became a bit of a legend.
Oh you’re right, you’re one of the few.
Not the first or last time I’ve had the unpopular opinion. Did that experience sour you on narrative filmmaking? [Spoilers for Blair Witch 2 in the following answer]
It kind of did, to be honest with you. I think there may be a time when I come back to it but what I’ve enjoyed about my work to date is that I am truly the author – sometimes I have a filmmaking partner so I’m not trying to exclude him – but generally speaking I am largely in control of the creative content of my work. I have tremendous creative freedom to choose the subject, to make the film that I want to make. Of course, when you work for HBO they give you notes. When you do a film with Paul Simon, he controls the music so it’s not like you don’t have to defer every now and then to other people’s opinions, but generally speaking, compared to making a Hollywood studio movie, I’ve enjoyed tremendous creative freedom. The experience of Blair Witch 2, my director’s cut was a very different movie. My director’s cut, at the 12th hour the studio interfered with the film in ways that I found really offensive. Intercut throughout the film were these interrogation sequences of the Blair Witch  guys being interrogated by the police when it becomes clear that they actually did the killing. That was supposed to be an eight-minute reveal at the end of the movie as opposed to being sprinkled throughout the film. And against my will, they recut the film and also all of the horror in that movie, like the original Blair Witch Project, was supposed to be off screen but they insisted after focus testing the movie that we needed to have some real bloody scares.
So there’s a whole bunch of sequences in that film that are flashbacks to the murders that are part of the story and I fought against those tooth and nail. So despite you giving it high praise, I actually think the film is deeply flawed and it was taken out of my hands at the 12th hour and recut in a way that I am embarrassed over. So that experience really has made me gun shy. I’d rather work in a smaller environment on projects that I have much more control over. That’s not to say I won’t try my hands at a feature at some point, but I’ve enjoyed having creative control. I have a nice juggle of nonfiction TV, TV commercials and long form documentary films. No one’s breaking my door down to do scripted narrative work. I’ve just positioned myself in a certain way, and life’s too short.
But it was your idea to deconstruct the format of the original Blair Witch Project, right?
Oh absolutely. I’m delighted you like the movie and I think aspects of the movie still survive the botching of it by the studio. I think in general the criticism was way too harsh and I realized I underestimated the venom that any film called Blair Witch 2 was going to get by people who were offended at the idea of sequelizing an indie phenomenon.
And doing a sequel that accused the fans of the first one for buying into it!
Exactly. You’re one of the few people who actually saw what I was trying to do. Those ideas I think are still in the film and those ideas I thought were really strong, that instead of continuing the found footage conceit and doing some dopey sequel that was just a continuation of the story, I actually decided to make a sequel about the real life phenomenon of the movie being such a wild success that there were fans out there who wouldn’t accept that it wasn’t real and had to go to the town itself to see whether it was real or not. That whole idea and deconstructing the myth of the Blair Witch and basically saying the more the line between fiction and reality because a studio was so successful in tricking people into going to see a movie by saying it was real, by critiquing that idea and saying that the more that we blur the line between fiction and reality, the less we’ll know what is real, I actually love that idea and wish it had been allowed to live in its fullest form, but I kind of lost control of the movie and I’m delighted that you were one of the few who saw that.
Fred Topel is a staff writer at CraveOnline. Follow him on Twitter at @FredTopel.