Tuesday, April 8, 2008

Privacy lawsuit against Borat fails

New York makes it illegal to use someone's name or likeness for commercial purposes. This right is protected under the "invasion of privacy" statute, Civil Rights Law section 50. As New York is still the home of big media, the courts are continuously interpreted this law in every convievable context. And, as New York is home to big media, the exceptions to this law are large enough to drive a truck through, as I learned a few years ago in getting one of these cases dismissed against a client. But as outlined in a recent court decision involving the Borat movie, these cases are not always easy to win.

The case is Lemerond v. Twentieth Century Fox Film Corp., 2008 U.S. Dist. LEXIS 26947 (S.D.N.Y. March 31, 2008). (Courtesy of the Appellate Law and Practice Blog, fans of this litigation should click here for all case-related documents). If you haven't seen the movie, Borat is a pseudo-documentary about an obnoxious foreigner who films his travels in the United States. The movie is a satirical look at modern American life, as the star, Borat, films real people and events. In order to make the movie interesting, Borat basically makes an ass of himself in public. That means that unwitting people on the street are part of the movie. One of those guys sued 20th Century Fox over this.

As Judge Preska puts it:

One such clip, at issue in this litigation, shows Borat, with a heavily accented voice, greeting Plaintiff on the corner of 5th Avenue and 57th Street in Manhattan. 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.

Is the use of Lemerond's face a violation of the New York invasion of privacy law? After all, the movie used his likeness without his consent. The movie arguably used his likeness for advertising and "for the purposes of trade."

Lemerond loses the case. An exception to the invasion of privacy law is that the defendant can use your name and likeness if its reflects "newsworthy events or matters of public interest." Judge Preska finds that this case falls within that exception:

It is beyond doubt that Borat fits squarely within the newsworthiness exception to [New York Civil Rights Law § 51]. Of course, the movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewers. At its core, however, Borat attempts an ironic commentary of "modern" American culture, contrasting the backwardness of its protagonist with the social ills afflict supposedly sophisticated society. The movie challenges its viewers to confront, not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from "average" Americans. Indeed, its message lies in that juxtaposition and the implicit accusation that "the time will come when it will disgust you to look in a mirror." Such clearly falls within the wide scope of what New York
courts have held to be a matter of public interest.

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