In New York, One 'Borat' Case Falls, Three to Go

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In New York, One 'Borat' Case Falls, Three to Go

Mon Feb 11, 2008 @ 10:14AM PST

Posted by Matthew Heller

BoratOne of the four "Borat" cases assigned to U.S. District Court Judge Loretta A. Preska in Manhattan has fallen off her docket -- and two others could soon be headed in a similar direction.

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."

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