In New York, One 'Borat' Case Falls, Three to GoMon Feb 11, 2008 @ 10:14AM PST
Posted by Matthew Heller
Felix Cedeno, who is depicted briefly in the much-sued mockumentary as a bystander on the New York subway, dropped his suit against the producers earlier this week. He had not opposed a motion to dismiss and, according to the stipulation of dismissal, he will not receive "any payment or other consideration by Fox and/or any of the other named defendants."
In the motion to dismiss, Fox attorney Slade Metcalf of Hogan & Hartson in New York argued that Cedeno could not show violation of New York's publicity rights law because he "only appears on the screen for a mere second out of an almost 90 minute film" and
[C]ourts in New York interpreting this statute have made it crystal clear over the past century: a plaintiff has no claim under the New York statute if his picture appears in only an incidental or fleeting manner in the underlying movie, television program, or book.
Metcalf makes a similar argument in a motion to dismiss the case of two Romanian villagers, which is also pending before Preska. "[T]he use of three of four Plaintiffs’ images [in 'Borat'} is fleeting and incidental and thus does not come within the scope of [the publicity rights law]," it says.
In yet another case, Fox says Jeffrey Lemerond -- who runs away from title character Borat Sagdiyev after being accosted by him on a Manhattan street -- has no publicity rights claim because his fearful reaction to Borat has a "real relationship" to the film's theme of "everyday Americans responding to a stunning culture clash."