Sacha Baron Cohen’s Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan is set to open in two weeks. The comedy follows a fictional Central Asian journalist who travels across the United States and interviews real people. Several of the film’s unsuspecting stars have come forward recently to say they got duped into participating in the mockumentary. Most say they never read the fine print on the release forms they signed. What kind of releases are they?
Extra-long ones. Production companies typically get releases from everyone who appears on camera and can be identified in a finished film. A standard consent agreement has a couple of components. First, the signer agrees to let the producers use his image and voice in any way they see fit. Second, he waives the right to make a claim for defamation, invasion of privacy, or infringement of his rights of publicity.
What are these claims? In general, you can sue a production company if they use your image (or some other aspect of your persona) in a way that’s misleading to viewers and makes you look bad. You can make a privacy claim if private facts about you are disclosed, or if the producers intruded upon you in a private place. And you can sue on the basis of your publicity rights if your image gets used for commercial purposes without your permission. (The courts first laid out the right of publicity in the 1950s, in a case concerning whether Topps Chewing Gum could use baseball players’ images on trading cards.)
The strength of each of these claims depends to a large extent on context. Not everyone has the same rights to privacy and publicity. Tom Cruise would have a tough time claiming the right to privacy if his picture were published without permission. He’d have a much better case on publicity grounds: He could argue that if you’re using his face for profit, you’re stealing his business.
News outfits can use pictures however they want, as long as they relate to a genuine news story. This protection applies to documentary films as well. As a general rule, narrative films have a little less leeway—that’s why they tend to get releases from everyone who goes on camera.
What about the Borat movie? Participants were asked to sign a “STANDARD CONSENT AGREEMENT” prepared by “One America Productions Inc.” The document describes a “documentary-style film” designed “to reach a young adult audience by using entertaining content and formats.”
The agreement goes on to release the production company from a list of 16 potential claims. The waivers encompass claims of defamation, invasion of privacy, and infringement of publicity rights—and they do so in unusual detail. The document diverges most clearly from the standard “standard consent agreements” when it gets into issues of fraud, “breach of alleged moral rights,” and copyright infringement. There’s even a reference to the federal Lanham Act, which covers unfair business practices that could mislead consumers. (This clause may protect against the claim that consumers were made to believe that the participant has endorsed—or voluntarily acted—in the film.)
The release form seems to cover all the bases, but it’s not clear if it precludes all legal action. A participant might claim that he was tricked into signing the contract under false pretenses. He could also argue that some of the waivers in the release contradicted state law and were therefore invalid.
On the other hand, a claimant would have a tough time proving his case. Everyone that Borat interviews knows he’s being filmed for a movie, and no one tells them to say embarrassing things.
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Explainer thanks Jay Dougherty of Loyola Law School in Los Angeles, Mark Litwak of Mark Litwak & Associates, Dia Sokol of Good Egg Entertainment, and Linda Stein of www.LindaStein.com.