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

Posted by Matthew Heller

One 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."