Saturday, September 13, 2008

Film Production, Rights of Publicity and Borat

Lemerond v. Twentieth Century Fox Film Corp., 2008 WL 918579, 87 U.S.P.Q.2d 1219 (S.D.N.Y.)(LAP). Psenicska v. Twentieth Century Fox, 07 Civ. 10972 S.D.N.Y, September 3, 2007 (Preska, J.) found here courtesy of How Appealing.
When you make a film, do you need a person's permission before you put that person's image in your film? Can you "commercialize" the person's image without their consent? And if you do obtain a "release" from the person, are there limits to what you can use the image for?
Not surprisingly, Sacha Baron Cohen of Borat and Da Ali G Show fame has pushed everyone's limits on these issues.
In making the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan, Cohen went out into the streets dressed up as his fictional Borat character, accosted a man in the streets of New York City, and included the footage of the encounter in both the film and the trailer. Is that ok?
New York's Civil Rights Law Section 51 creates a cause of actions for "[a]ny person whose name, portrait, picture or voice is used within [New York] for advertising purposes or for the purposes of trade without" their written consent. There is a broad "newsworthiness" exception to the statute. In dismissing plaintiff's claims, Judge Loretta Preska found that Borat's childish and vulgar character was engaging in a commentary on American society and was accordingly, newsworthy.
In the Psenicska case, numerous plaintiffs executed releases that were sprung on them at the last minute before filming. The releases were detailed and indicated a consent to participate in a "documentary-style" film. During each segment, each plaintiff was subjected to offensive, humiliating and outrageous behavior from Cohen. Analyzing the question under New York contract law, the court found the term "documentary-style" - to accurately portray the Borat film's content. The court dismissed the fraudulent inducement claims, noting that such claims were specifically waived by the language in the release.
In producing a copyrighted work such as a film, one must take care to ensure that it consists of underlying content that is obtained properly. Had these issues not been litigated in New York, or release not been obtained, the result would surely have been different. The broad language of New York's Civil Rights law is narrowed substantially by the case law.

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