'Lexytime': Borat Lawsuit Dismissed
Last year we provided extensive coverage of litigation arising out of Borat, Sasha Baron Cohen's raunchy hit film. Things have been generally quiet on that front, but now we have some news. Sewell Chan reports over at the City Room:
Was Sacha Baron Cohen’s 2006 film “Borat” a pure slapstick comedy? Does it have a measure of redeeming value as a societal commentary? A federal judge considered these questions before dismissing a lawsuit filed by a man who was randomly accosted — and touched — by Mr. Cohen on a Midtown street. The judge concluded that the movie “appeals to the most childish and vulgar in its viewers” but does make an effort to offer a critique of American society.
Reached for comment, Borat said: "Dismissal of lawsuit: Is nice! Borat want to meet Judge Preska and make sexytime under her robe."
In general, the civil rights law prohibits using a private person’s name, portrait or likeness for “advertising purposes or the purposes of trade” without the person’s written permission. But as a judge, Loretta A. Preska of the Federal District Court in Manhattan, noted in a nine-page ruling on Monday, state courts have interpreted the ban narrowly, as “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person.”The ban does not apply to “newsworthy events or matters of public interest,” and “newsworthiness” has been taken to include “not only descriptions of actual events, but also articles concerning political happenings, social trends or any subject of public interest.”
Here's an excerpt from Judge Preska's opinion:
Of course, the movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewers. At its core, however, “Borat” attempts an ironic commentary of “modern” American culture, contrasting the backwardness of its protagonist with the social ills [that] afflict supposedly sophisticated society. The movie challenges its viewers to confront not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from “ordinary” Americans. Indeed, its message lies in that juxtaposition and the implicit accusation that “the time will come when it will disgust you to look in a mirror.” Such clearly falls within the wide scope of what New York courts have held to be a matter of public interest.
You can read the complete City Room post over here. Did Judge Preska get it right? Feel free to voice your view in the comments.
Judge Dismisses Suit Over ‘Borat’ [New York Times]
Earlier: Prior ATL coverage of Borat litigation (scroll down)
(33) 
Firzt.
first
Absolutely correct.
Gotcha.
That's probably one of my favorite scenes in the movie.
I got bird flu from that chicken he let out on the subway
Yeah, it's absolutely correct.
One down about 100 more lawsuits to go. Good thing the movie made almost $200 million.
why wha wee waa
There has to be protection against exploitation in the public domain. The law strikes that balance. By severely limiting the definition of "commercial" -- as this opinion does -- it effectively reads the law out of itself.
I would wonder, famous people in California have a protected interest in their "likeness." Misappropriating a famous person's likeness is a defined tort. I'm not an expert so I don't know if that law would apply if the man were famous rather than your average joe, but it would set an interesting precedent if this reading results in protection only for those of us who are lucky to pass into the realm of fame.
Best movie review of Borat I've read.
10:23 is spot on. Preska nailed it.
Preska is an amazing judge
Thisa victory isa greata success!
jar jar, get off the site; this is for borat impersonations only.
i expect better from JT
I always thought he was just a raunchy version of Yakov Smirnoff woven into an obsession with highlighting anti-semitism.
Are you serious? Borat can harass me in the street, not get my consent, and make millions off of me by including me in a commercial film? Not cool.
Someone please explain how this law works then.
Her clerks had fun with that one...
10:50, I'm gonna make hand relief all over you and there's nothing you can do about it.
Basically, yes. If you're famous then you get greater protection against your likeness being used commercially (at least under CA law where there is a Right of Publicity doctrine; NY, I believe, has a similar doctrine but it's buried in / created out of the "newsworthy" stuff). However, "used commercially" doesn't just mean "used to make a profit" it means "used as commercial speech" (more or less) usually to imply endorsing a product. Obviously, celebrities get their images and names used to turn a profit by other people all of the time (paparazzi, tabloids, etc.). This is the same sort of thing, just happening to an average joe.
10:50 --
Are you serious? Get back to your 1L studies.
High five!
Lat -
"lexytime"???
Is that supposed to be a combination of lexis and sexytime? If so, that's just stupid.
Oh and yes, clearly correct.
You heard it here first:
When Reoper kicks it, it's gonna be 'Ebert & Preska'
11:22. Thank you for your explanation.
11:30. You're an asshole. You're probably one of those lawyers that boasts about billing 2200 hours instead of realizing how sad that is.
My favorite scene was the bag of feces at the dinner party - which is also the subject of litigation. In fact, just about every scene in the movie has resulted in a lawsuit.
10:41, JT apologizes for what you considered to be a poor Borat impression, despite it being accurate textually. JT was too busy porking your sister whilst your mother slaved away at making JT's favorite meal, "Pasta Fagoli," (which, JT understands, was named after you) to polish his Borat impersonation.
Now go get JT a soda. Pepsi, lemon, no ice.
Jak sie masz! My name-a Borat. I very-a happy with justice system of U.S. and A. I proud my moviefilm vindicated by nice judge Preska. I have sexytime with her later.
Legal system in U.S. and A. is much different from Kazakhstan! In Kazakhstan, if you defame man on moviefilm, he allowed to sodomize you 10 minute for each minute he appear on your moviefilm. Love explosion over bad moviefilm not good!
12:47--
Nope. Not even in biglaw. I'm just not a little b*tch that would consider suing someone over such a trivial thing.
Peoples at my learning house would become very angrys when I make a hand relief all over their sister's virgin all the time; it was no big deal.
KAZAKH FRAT STUD, ftw
bravo!
The judge reached the right decision, but her description of the movie leaves much to be desired. The movie is mostly about mocking how seriously we in the west take ourselves, and how arrogant we are to assume that we're so much more advanced than the rest of the world that it's perfectly normal to expect the ignorant savages to bring poop to the dinner table -- THEN it juxtaposes this with a handful of ignorants in our own country (e.g., rodeo guy, frat boys).
Borat is being defended by the Kazakhstan affilate of Dewey & Leboeuf - please refer all matters to attorneys Morat and Stevat.