Judge Cites 'Otherness' of 'Borat' in Dismissing Publicity Rights Case

Posted by Matthew Heller

U.S. District Court Judge Loretta A. Preska in Manhattan -- who has the unenviable assignment of handling all the "Borat"-related cases in that jurisdiction -- believes the hit mockumentary's humor appeals to the "childish and vulgar in its viewers." But that didn't stop her from dismissing a publicity rights case filed by a pedestrian whom title character Borat Sagdiyev chases down a Manhattan street.

The scene depicting the pursuit of Jeffrey Lemerond "is part of a series of clips showing Borat's first exposure to American culture," Preska noted in her ruling, "and in so doing, bears a relationship to the [movie's] theme of 'otherness.' As such, it falls within that broad exception [to publicity rights liability] recognized by New York courts for newsworthy items or matters of public interest."

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."

'Borat' Suit Dies in Alabama, But May Rise Again in NY

Posted by Matthew Heller

It's been at least a couple weeks since we checked in with one of the many, many "Borat"-related cases pending around the country. Friday brought news that the Alabama Supreme Court has dealt a serious blow to an etiquette teacher's case against the makers of the raunchy faux-documentary, but reports of its demise may be exaggerated.

The court found Kathie Martin cannot sue “Borat” star Sacha Baron Cohen and the film's production companies in Alabama because she signed an agreement which requires that any claim arising from her appearance in the film be brought in New York. But the decision was purely jurisdictional -- and Martin has already filed court papers in Manhattan Supreme Court in an apparent attempt to make sure any suit in that venue is not time-barred under the one-year statute of limitations.

The papers consist of a “summons with notice,” which, in New York, can be filed as an alternative to filing a summons and complaint. They are dated Oct. 22, 2007 -– just under one year after the general release of “Borat.”

In the film, Martin tries to teach the title character the finer points of dining etiquette. He reciprocates by showing her nude photos of his "son." She sued in Alabama in December 2006, alleging fraud, misappropriation of her likeness, and invasion of privacy.

The suit ultimately did not get past the threshold issue of jurisdiction. The Alabama Supreme Court reversed a trial judge who ruled that the forum-selection clause in the contract between Martin and Springland Films was not enforceable because Springland is not qualified to do business in Alabama.

The "Borat" producers are also trying to enforce the same forum-selection clause in a suit filed in Alabama by another etiquette teacher and four of her guests who had the misfortune of dining with Borat. A motion to dismiss for improper venue is pending in that case.

New 'Borat' Plaintiff Just Wants His Money

Posted by Matthew Heller

The latest "Borat" plaintiff is taking a slightly different approach from the many other allegedly unwitting foils of the film's Kazakh interviewer. Michael Psenicska, a Maryland driving instructor, isn't saying the film invaded his privacy or depicted him in a false light. He wasn't embarassed or humiliated. The fraud suit he filed Nov. 30 in Manhattan federal court basically boils down to the allegation that he should have gotten more -- a lot more -- than the $500 that the "Borat" producers paid him.

"Equity warrants that plaintiff receive substantial compensation from defendants for the use of his likeness in the Borat film," the complaint says.

According to the suit, "Borat" producers duped Psenicska into giving the title character a driving lesson by telling him they were making a "legitimate documentary." He signed a release to appear in the film and was paid the $500, but is suing for fraudulent inducement damages and a declaration that the release is null and void.

"He maintained his dignity rather well," plaintiff's counsel Peter M. Levine of New York told the Baltimore Sun. "Our argument is that he should be paid for his services in the movie."

Levine didn't mention that the statute of limitations on any claims for defamation or invasion of privacy has expired, perhaps precluding Psenicska from filing anything but a fraud claim.

Very Nice! Fox Starts Collecting Attorneys Fees From Borat's Victims

Posted by Matthew Heller

It's an open question whether the boxoffice take of last year's hit "Borat" was harmed or helped by all the press surrounding the lawsuits filed against 20th Century Fox by unwitting participants in the film. But Fox's lawyers have been collecting a steady revenue stream lately -- attorneys fees from those who unsuccessfully sued for fraud and invasion of privacy. In an award  under California's free-speech anti-SLAPP law, Los Angeles Superior Court Judge Joseph S. Biderman earlier this month ordered a Virginia man to fork out $43,775 to the "Borat" defense team from Leopold, Petrich & Smith in Century City.

The plaintiff, identified only as John Doe 3, was one of the spectators at a rodeo where Borat Sagdiyev, played by Sacha Baron Cohen, is invited to sing the Kazakh national anthem. He alleged the rodeo scene falsely portrayed him as "uneducated, sexist, racist and bigoted," but Biderman declared the case a SLAPP suit in June. That ruling effectively ended the case on free speech grounds and made the defense eligible for an attorney fee award, which Biderman granted after rejecting the plaintiff's "argument that the Court should not award fees against him due to his financial condition." The judge tacked on another $1,014 for costs.

Several other "Borat" cases are pending. But in the most high-profile suit, the Leopold Petrich firm, led by Borat specialist (and THR Power Lawyer) Louis Petrich, collected a stipulated award of $50,000 in fees and costs from the two South Carolina frat brothers depicted making racist and sexist comments in the mockumentary.

Olivier Taillieu of Zuber & Taillieu in Beverly Hills represented both the frat boys and the rodeo fan.

Reality Spats: Is Jeff Goldblum the New Sacha Baron Cohen?

Posted by Matthew Heller

A Pittsburgh theater stagehand has accomplished the rare feat of filing a privacy suit against the makers of a "mockumentary" not named "Borat." The film, "Pittsburgh," released last year, is set at the Benedum Theater where Debbie Sue Croyle works and features Jeff Goldblum taking time off from his movie star life to perform in a production of "The Music Man." According to her complaint, Croyle, who says she never signed a release, appears in one scene in which Goldblum directs a bawdy innuendo at her.

"The scene reduces Movant's professional work to an act with a sexual purpose," Croyle argues in a motion for a temporary restraining order which is scheduled to be heard Wednesday by U.S. District Judge David S. Cercone.

The various lawsuits against Fox and Sacha Baron Cohen by the unwitting stars of "Borat" haven't gained much traction. Similar to those cases, the defendants here include the six production companies involved in "Pittsburgh" and directors Chris Bradley and Kyle LaBrache. The restraining order would enjoin the Starz cable channel from airing the film later this week.

Croyle is also seeking $8 million in damages, alleging the film has tarnished 30 years' worth of credibility built up working as a female stagehand in "a male-dominated field." She is represented by Margaret Fried and Shelley Segal of Fried & Davis in Pittsburgh.

'Borat' Movie Still Make Benefit Lawyers

Posted by Matthew Heller

A year after his glorious movie premiered, Borat Sagdiyev's celluloid journey through the American South is turning into the judicial equivalent of General Sherman's march. An Alabama etiquette teacher and her outraged dinner guests have now joined two South Carolina frat brothers, a Virginia rodeo spectator, a Mississippi churchgoer and, yes, another Alabama etiquette teacher in suing the makers of “Borat” and star Sacha Baron Cohen for duping them into participating in the hit mockumentary. Cohen and 20th Century Fox are alleged to have "conspired to subject the Plaintiffs to Cohen's lewd, insulting and offensive conduct," according to this lawsuit filed Oct. 19 in Birmingham federal court by Cindy Streit.

Streit, of Etiquette Training Services of Birmingham, is not to be confused with Kathie Martin, operator of The Etiquette School of Birmingham, who sued in December 2006 over her appearance in the film teaching the Kazakh ambassador some table manners. A "Borat" field coordinator recruited Streit to help arrange a "Southern, in-home style dining experience" for a "foreign dignitary" from Belarus. That developed into the infamous (and hilarious) dinner-party scene in which Borat horrifies the well-heeled guests by, among other things, returning from a bathroom visit with a plastic bag filled with what appears to be his bodily waste.

The fraud and right-of-publicity cases brought by the frat brothers and the rodeo guy, which were filed in Los Angeles Superior Court, were speedily dismissed on anti-SLAPP motions brought by Fox's go-to litigator for all things Borat, Louis Petrich. But in the Deep South, which doesn't have similar free speech protections, judges may be more receptive to an anti-“Borat” suit.

A federal judge in Mississippi declined to dismiss the case of churchgoer Ellen Johnston in August and barely disguised his distaste for the film. “There are indeed many reasonable Americans, especially those who are of an older generation, who are not familiar with the type of humor/satire that is depicted in the film Borat,” U.S. District W. Allen Pepper, who is in his mid-60s, said.

In an unusual move, Pepper certified an appeal of his own decision –- which means a “Borat” case could be one judicial step away from the U.S. Supreme Court.

UPDATED: The 5th Circuit denied leave to appeal Pepper's decision in a Nov. 13, 2007 order.