Borat Sequel: Legal Proceedings Against Not Kazakh Journalist for Make Benefit Guileless Americans in Film:
Is There a Way Around the Releases Signed by Those Who Appeared in The Movie?

Lately, comedian Sacha Baron Cohen's character Borat has been in the news frequently. But as Borat would say, "This news is good. NOT!"

Despite its boffo box office, Cohen's movie "Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan" has drawn a spate of complaints and, thus far, two lawsuits.

In this column, I'll focus on the lawsuit brought by two members of a fraternity at a South Carolina university who, in the film, make - or agree with Borat's making - a number of racist and sexist comments.

Ultimately, it's possible that the filmmakers may be protected from suit for certain claims by California's "social host immunity" law.

Genesis of Complaints, Calls for an Investigation, and the Romanian Suit

A number of the non-actors appearing in the movie say that the filmmakers made various promises to them that were never kept. They claim that the filmmakers secured their consent to appear in the film, based on these promises, when they otherwise would not have done so. None of them denies, however, signing a release of claims in connection with their appearance in the film.

Meanwhile, the L.A. Times has reported that well-known California attorney Gloria Allred has asked the Attorney General of California to investigate whether what Cohen and his producers did constitutes an illegal trade practice. (In addition, the host of a dinner shown in the movie, at which Borat was supposedly putting etiquette lessons into practice, has filed a complaint with the California Attorney General.)

Allred apparently takes the position that the signatures shouldn't, as a legal matter, excuse the lies, no matter what the release may say.

Finally, some of those who appeared in the film have actually gone to court - including two Romanian villagers whose New York suit alleges they don't speak English, and didn't understand the releases they signed; and the two South Carolina fraternity brothers, whose California suit alleges that Cohen and his producers got them drunk before they gave them the releases to sign.

The Allegations in the Frat Brothers' Lawsuit

The plaintiffs in the California suit, the two young fraternity brothers, are listed anonymously as "John Does." (Many courts will allow plaintiffs to proceed anonymously when the plantiffs' privacy interests are more important than the public's right to know who a party is, such as when minors are involved, or there's a risk of physical retaliation. Since the plaintiffs allege invasion of privacy in their complaint, the court here may permit them to proceed anonymously.)

One of the frat brothers alleges that he was under twenty-one when he was filmed. Both complain that "Mr. Cohen and his staff lie really well," and that they were "tricked in[to] making fools of themselves."

The plaintiffs say things happened as follows: Cohen and his producers plied them with liquor until they were intoxicated, and then got them to sign releases - based on assurances that the film would only be shown in Europe, and that it would not disclose their names, their college, or the name of the fraternity to which they belonged. (They also claim they relied on representations made on a purported website for the production, and believed they would have a chance to "affirm or disaffirm" the releases after they were filmed.)

The plaintiffs also allege that while drunk, they "engaged in behavior that they otherwise would not have engaged in." They say the film put them in a false light when it showed this behavior, and thus depicted them as "insensitive to minorities." But that's putting it kindly: Viewers of "Borat" will witness them make blatantly racist and sexist statements. For instance, they agreed with Borat that slavery was a good idea.

Based on these allegations, the plaintiffs are suing Twentieth Century Fox, the studio for the film, and the production companies for fraud. In addition, they seek to invalidate the very releases that, by their language, forbid them from bringing exactly this kind of suit.

The plaintiffs are also suing for "false light" invasion of privacy - a claim very similar to a claim for defamation, suggesting that the movie, in effect, conveyed false information about them to viewers. This claim, however, seems especially dubious. Few are letting Mel Gibson off the hook for his anti-Semitic statements merely because he was drunk when he made them. Can the frat brothers really prove that, while drunk, they "engaged in behavior that they otherwise would not have engaged in"?

In additional, the plaintiffs have brought claims for the use of their names and likenesses without their permission. (I discussed such claims at length in earlier columns relating to two "Cheers" actors and to Vladimir Putin.)

Finally, they claim that Cohen and his producers negligently caused them emotional distress. They seek both money damages, and an injunction against further use of their images in the film - an injunction that, if granted, could significantly affect future theatrical and DVD releases.

The "Merger" Clause in the Release: Probably Enforceable

The main problem for the plaintiffs is that the releases they signed appear to contain what are known as "merger clauses." (Slate has provided an example of one of the releases used, but it's not clear if it's identical to the release the fraternity brothers signed.)

Merger clauses -- such as in the one in Paragraph 5 of Slate's example -- state that the agreement signed is the "entire agreement" and that the signatory does not rely on earlier promises or agreements.

They are called "merger" clauses on the theory that any prior agreements -- or understandings -- either become part of ("merge into") the new agreements because they are reflected in specific words therein, or else simply disappear. If one accepts the legal concept of "merger," then it doesn't matter what promises the filmmakers made to the frat brothers, because from a legal perspective, to the extent they weren't incorporated into the written release, they ceased to exist.

Slate's example refers, in particular, to promises made "about the nature of the film or the identity of any other Participants or persons involved in the film." (Note the clever use of the term "Participant," rather than "subject" or "actor"; the release's terminology pointedly makes no representations, itself, as to the film's nature.)

Ideally, from the defendants' perspective, the release would have been written much more broadly. However, Paragraph 2 of the release seems to specifically negate any alleged promises that the plaintiffs' names, their fraternities' name, or their university's name wouldn't be used -- for it says that, among other things, the Participant agrees to allow the Producer "to use the Participant's… biographical material."

Moreover, any claims that the plaintiffs did not consent to including their "uncharacteristic" behavior in the film is contradicted by their consent, also under Paragraph 2, to the use of their "contribution" and of "film footage" of them. Finally, under Paragraph 4 of the release, the plaintiffs waive most, if not all, of the claims they now allege. (Under contract law, the whole of the agreement is taken together when a court interprets the agreement, so Paragraphs 2 and 4 are relevant to the interpretation of the merger clause in Paragraph 5.)

In sum, the combination of the merger clause and the other specific clauses in the release indicates that the defendants have a very strong defense to the fraternity brothers' suit.

What about One Frat Brother's Claim Of Inducement of Underage Drinking?

There's one strategy the frat brothers may use to try to get around the Merger Clause, however. But it, too, may not succeed.

One plaintiff says he was under 21 (the drinking age in South Carolina, where the drinking occurred) at the time, and that the producers nevertheless bought him drinks, and encouraged him to consume them, before he signed the release.

These allegations certainly sound bad - but they may not be as strong as they might seem. Some have claimed on the Internet that the fraternity brothers were already frequent drinkers, long before they even met Cohen, and if their fraternity lives up to the stereotypical fraternity image of binge drinking, that seems quite plausible. If that's true, then it wouldn't seem accurate to say that the producers "induced" the plaintiffs to drink, rather than simply giving them an opportunity to do so.

Moreover, even if these facts were proved, and even if they might give South Carolina authorities reason to try to bring criminal charges against the filmmakers for providing alcohol to a minor, that still leaves us with a separate question: What, exactly, would the legal significance of these facts be for the California civil suit?

In both South Carolina, where the contract was signed, and California, where the suit was brought, the plaintiffs were well beyond the age of consent for purposes of signing a contract, even if one was below the drinking age. Moreover, general contract-law principles suggest that an intoxicated person can sign a contract unless he is "so intoxicated as to be incapable of understanding its nature." That's a high standard to meet.

It's also possible, though not certain, that the California court would apply California's "social host immunity," set forth in California Civil Code section 1714, to protect the filmmakers. This California defense means, in practice, that if a host knowingly or negligently serves a drunken guest, who then injures himself or someone else, the host cannot successfully be sued. (The reasoning behind the law is that it is the act of drinking by a person that ultimately leads to injuries caused by that person, and not by the fact that someone served them alcohol.) Thus, under the statute, even if the filmmakers did serve the fraternity brothers, they might be deemed legally immune from the consequences, down the line, of doing so.

Still, this would be a novel application of a statute that was drafted to protect hosts from their guests' mistakes, not from their own misdeeds, and that was intended to provide hosts with immunity from tort suits. Nevertheless, at least to the extent plaintiffs' tort claims in the complaint, such as the false light claims and the negligent infliction of emotional distress claim, depend on their allegations that because the filmmakers got them intoxicated, they "engaged in behavior that they otherwise would not have engaged in," the filmmakers may well be off the hook on these claims. That is, if the immunity indeed applies.

In the end, the likeliest outcome here is that the defendants will prevail. The frat brothers may be hoping for a quick and lucrative settlement, but it might be unwise for the defendants to offer one, as that might inspire the many other disgruntled participants in the movie to bring their complaints to court, too.

The author would like to express grateful thanks to Larry Haveson for his superb help on the research for, and substance of, this column. - Ed.