Professional Documents
Culture Documents
1. Who is “Borat”?
Ten plaintiffs who appeared in Borat filed suit, but none survived early dismissal (see
chart, infra). Claims generally allege invasion of privacy, unauthorized use of likeness,
fraudulent inducement, rescission, emotional distress and pray for injunctive relief (to
stop DVD sales).
Cohen and his producers were successful in asserting two defenses: First, the
“consent agreement” signed by many of the plaintiffs included a merger clause that,
pursuant to a New York Federal District Court judge, precluded claims for fraud.2
Second, even where no consent was given, both New York and California courts agreed
that the film’s themes were of “public interest,” trumping the plaintiffs’ privacy interests.
In L.A. Superior Court, plaintiffs paid nearly $100,000 in Anti-SLAPP attorney fees,
because they could not support their damages claim.
Possibly you and I! Cohen has written and will likely star as an ambulance-chasing
personal injury lawyer in a new film, “Accidentes.” The protagonist will be a lawyer of
Latin descent who transforms from contingency attorney to a hero of the working class,
while becoming the enemy of L.A.’s power elite.
1
In addition to prior TV portrayals of his “Borat” character, Cohen is also known for his wannabe-gangsta-
rapper, “Ali G” and “Bruno” (a flamboyantly gay Austrian fashion reporter who will be the central
character in a Borat “sequel” slated for July 2009). Cohen has also been signed to play Sherlock Holmes
opposite Will Farrell, and Abbie Hoffman in a film on the Chicago Seven.
2
The dismissal of one such case has been appealed to the Second Circuit Court of Appeals.
6. What is a SLAPP?
In California, SLAPP claims have included not only defamation, trade libel, slander
of title, invasion of privacy, malicious prosecution, and abuse of process, but also less
obvious claims such as consumer remedies, unfair practices, interference with business
relationships, trespass, nuisance, and harassment. Recently, online publishers (bloggers,
anonymous Internet chat room participants, and ISPs), have been successful in exercising
anti-SLAPP rights for the following:
• comments posted about a company’s finances
• comments posted about public persons and their voluntary companions
• comments posted about topics of widespread public interest or debate
A lawyer served with an anti-SLAPP motion shortly after filing a complaint may find
him or herself explaining to clients that they risk a mandatory fee award. Plaintiffs
additionally face exposure to compensatory and punitive damages, should the defendant
be able to prove that the suit was brought “in order to harass or silence.”
8. Why did New York and California trial judges find “protected speech” in Borat?
New York Case No. 1: Man Running Away From Borat on Manhattan Street
(Held, “bizarre and offensive” is a matter of public interest)
“Approaching Plaintiff, Borat extends his hand and says: ‘Hello, nice to
meet you. I’m new in town. My name a Borat.’ Before Borat can finish
his greeting, however, and without further provocation, Plaintiff begins to
run away in apparent terror, screaming ‘Get away!’ and ‘What are you
doing?’ The 13-second clip concludes as Borat responds, ‘What is the
problem?’ Defendants never obtained consent to use Plaintiff’s image,
which appears twice in the movie and once in its trailer advertisement. In
the trailer, Plaintiff’s face is scrambled, rendering his likeness ‘blurry’ and
indiscernable; his face is not scrambled in the film itself.”
Acknowledging that the movie’s brand of humor “appeals to the most childish and
vulgar in its viewers,” Judge Preska elaborated upon the “teachings” of Borat:
New York Cases, No. 2: Borat Gets a Driving Lesson/Borat Comes To Dinner
In another case before Judge Preska, Michael Psenicska, a high school mathematics
teacher and driving school instructor also brought a § 51 claim against Borat and his
producers. Unlike Lemerond, Psenicska did not demand injunctive relief to prevent
further distribution of the film, or claim humiliation for the use of his image in a largely
unscripted scene in which the plaintiff attempts to give Borat a driving lesson, with
hilarious—although obnoxious -- results. Instead, he claimed that, based on the film’s
profits, the paltry $500 paid to him pursuant to his contract with the defendants was
insufficient because he had been “set up.” Psenicska claimed $100,000 in damages. The
basis of his lawsuit was that the producers fraudulently induced him to sign the contract
after defendants misrepresented to him that he would be participating in a legitimate
documentary about “the integration of foreign people into the American way of life.”
This case was consolidated with two other cases, both of which involved Alabama
etiquette teachers who had agreed to give lessons to Borat, who allegedly was represented
as “a Belarus dignitary” needing etiquette and dining skills training. The lessons were
allegedly to be filmed for a National Geographic-style educational documentary for
Belarus television, the purpose of which was to teach “cultural diversity and to learn
about Southern traditional values and Southern-style living.” In exchange for pay,
plaintiffs shared their Southern hospitality in a filmed dinner at a plaintiff’s home. As
always in the film, a seemingly ordinary event degenerates into a hilariously offensive
fiasco, including a scene in which Borat hands the plaintiff a bag of feces. When the
plaintiff gently accompanies Borat and his bag to the toilet to instruct him in polite
bathroom behavior, Borat suggests that her hostess’ duties include “wiping” him. The
plaintiffs not only suffered the alleged humiliation of being tricked into appearing in a R-
rated film “celebrating racism, child pornography, sexism,, nudity, anti-Semitism and
vulgarity.” By editing in scenes such as one suggesting that the dinner was taking place
on a fictional “Secession Drive,” plaintiffs were made to appear
In early September U.S. District Court Judge Loretta A. Preska issued a memorandum
and order. Judge Preska granting the defendants’ motion to dismiss the complaints
because “each Plaintiff has executed a valid agreement releasing the claims he or she now
attempts to litigate.”
In Dannan Realty Corp. v. Harris, 5 N.Y.2d 217 (1959), the court held that a party
is precluded from alleging the defense of fraudulent inducement when the contract signed
includes a disclaimer that no fraudulent statements were relied upon by the signor in
entering into the contract.
Relying on Dannan, Judge Preska rejected the plaintiffs' claims that the merger clause
was too general, and likewise concluded the terms of the contract were not ambiguous.
9. Fgfg
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1 Cedeno v. 20th Century Fox Illegal depiction of man in New York subway scene.
(USDC, S. N.Y.) Plaintiff dismissed case 2/4/08
2 John Doe 3 v. One America False portrayal of fraternity brothers as racist and sexist.
Productions Judge granted motion to dismiss 2/15/07.
(Los Angeles Superior Ct.)
*4 John Doe v. 20th C. Fox Film Corp. Secretly recording of man using restaurant bathroom.
(Richland County Ct. of Common Case dismissed.
Pleas, S.C.)
*8 Psenicska v. 20th Century Fox Driving instructor duped into giving Borat a driving
(USDC, S. N.Y.) lesson.
1:2007cv10972 – is this still pending Judge granted motion to dismiss 9/3/08; notice of
in 2nd Circuit Court of Appeals? appeal filed September 18, 2008.
9 Streit v. 20th Century Fox False portrayal of etiquette teacher and her dinner guests
(USDC, S. N.Y.) as racists.
Judge granted motion to dismiss 9/3/08; appeal
pending.
10 Todorache v. 20th Century Fox Film Duping and exploitation of Romanian villagers.
Corp. (USDC, S. N.Y.) Plaintiffs dismissed case 4/14/08.
Discussion:
USDNY: Lemerond (hereinafter “running man”): P signed no waiver, yet his appearance
was used in trailers for the film with blurred face, then without blurring in the actual film.
He allegedly “suffered public ridicule, degradation, and humiliation”
based on a 13-second scene in which he is filmed “fleeing in apparent
terror” from Borat, who had approached plaintiff to say, “Nice to meet
you.” Two causes of action: unauthorized commercial exploitation
pursuant to New York Civil Rights Law § 51 and quantum meruit/unjust
enrichment.
Disposition: 3/31/08 Motion to dismiss granted based on
“newsworthiness/public interest” exception to misappropriation claim
(and such claim subsumes quantum meruit claim).