Wednesday, September 10, 2008

Court dismisses more Borat claims

The Borat movie was good for a few laughs, but it also spurred many lawsuits. Bystanders who were humiliated in the fake documentary when its star, Sacha Cohen, pretended to be a foreigner studying American culture have mostly lost their cases for invasion of privacy and other torts. The latest round of cases, also alleging humiliation, have also been decided in Borat's favor.

On September 3, Judge Preska of the Southern District of New York dismissed three cases filed by seven people. The decision can be found here. Judge Preska does not seem to be a fan of the movie, which became a big hit as Borat/Cohen made an ass of himself in trying to make fun of American culture using unsuspecting civilians as props for his juvenile antics. The court wrote in an earlier Borat decision "The movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewers." Having seen it, I can say that Judge Preska accurately summarizes the movie.

Not everyone thought the movie was funny. The plaintiffs certainly did not. One plaintiff, a driving instructor, was shocked when Borat began driving like a lunatic "while engaging in conversations with strangers and making derogatory and offensive remarks about sexual intercourse, Jews, women and African-Americans." An etiquette trainer was horrified when Borat humiliated them and their friends at a dinner party by insulting other guests in a locker-room kind of way. The most disgusting scenes were not described in the court ruling, I can assure you.

But the plaintiffs have a problem in suing Borat/Cohen for fraud and humiliation: they signed a release that says they can't sue him. Borat had a good lawyer advise him that you can't use people this way without having them sign a waiver. The driving instructor signed it without reading the contract because he did not bring his reading glasses. No matter. Judge Preska says the agreements are clear in warning the bystanders that they will appear in a "documentary-style film" intended "to reach a young adult audience" in a humerous way. While the plaintiffs' lawyers tried to argue that the contract was misleading, Judge Preska disagreed: "There can be no reasonable debate . . . that Borat is a film 'displaying the characteristics of a film that provides a 'factual record or report,'" albeit one of a fictional character's journey across the country. Since the fictional story is told in the style of a real one, there is nothing misleading about the contract.

The plaintiffs also argued that the agreement was a fraud because it did not alert them to the true nature of the movie. This claim dies, also. The plaintiffs signed away their right to challenge any promises about the nature of the film or the true identity of the participants in the movie.

The success of Borat suggests that others will try to replicate its success with gotcha movies of their own. Cases like this will provide guidance for lawyers hoping to prevent the movie-makers from getting sued. Judge Preska does us a favor in summarizing the terms of the agreements. There is no greater peace of mind then using the very language in your own contracts for which the courts have already given their stamp of approval.

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