Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, June 17, 2008

Borat Litigation, Strike One

One of the pending cases in the mass of "Borat" litigation has been dismissed. Lemerond v. Twentieth Century Fox (No. 07 Civ. 4635 (LAP)), a publicity rights case, was dismissed by U. S. District Court judge Loretta A. Preska (who is hearing all the Borat cases), who stated that "This action arises from the brief use of Plaintiff's image in Defendant's film, BORAT—Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan (“Borat”). Plaintiff filed this action on June 1, 2007, asserting claims under New York Civil Rights Law §51 (“NYCRL §51”) and under New York common law for the unlawful use of his image. Defendant moved to dismiss for failure to state a claim under Rule 12(b)(6), and, for the reasons set out below, that motion is GRANTED."

As she discussed, "New York does not recognize a common-law right of privacy....Instead, it provides limited statutory protection through, inter alia, NYCRL §51, which provides a cause of action 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....To state a claim under NYCRL §51, therefore, a plaintiff must allege: (1) the use of his name, portrait, or likeness; (2) for “advertising purposes or for the purposes of trade;” (3) without written permission.... Because factors (1) and (3) are not disputed, the only question here is whether Plaintiff's likeness was used for “advertising purposes or for the purposes of trade” within the meaning of NYCRL §51. Notably, New York courts have consistently held that that section “is to be narrowly construed and ‘strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person.’”... Thus, the nonconsensual use of a plaintiff's image to depict “newsworthy events or matters of public interest” does not fall within the statute's reach....Courts have also observed that this “newsworthiness” exception should be broadly construed to include, “not only descriptions of actual events, but also articles concerning political happenings, social trends or any subject of public interest.”...The question of newsworthiness is a question of law to be determined by the courts. ...In determining whether an item is newsworthy, courts consider solely the “content of the article”—not the publisher's “motive to increase circulation.” ...Furthermore, courts should be wary not to “supplant the editorial judgment of the media in determining what is ‘newsworthy’ or of ‘public interest.’”...Consequently, “public interest” and “newsworthy” have “been defined in most liberal and far reaching terms.” ....With these principles in mind, it is beyond doubt that Borat fits squarely within the newsworthiness exception to NYCRL §51. 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 afflict supposedly spohisticated 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 “average” Americans. Indeed, its message lies in that juxtapostion 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. Having determined that the newsworthiness exception applies, liability under NYCRL §51 cannot ensue “unless there is no real relationship … to the article or the article is an advertisement in disguise.” ...Whether Plaintiff's image bears such a relationship to the movie is also a question of law, see Omni Publ'ns Int'l, 77 N.Y.2d at 143, 564 N.Y.S.2d at 1017-18, as to which there is no other answer but that it does. The scene depicting Plaintiff is part of a series of clips showing Borat's first exposure to American culture that emphasizes the differences between Borat's home village and his American destination. The clip with Plaintiff casts these differences in particular relief and, in so doing, bears a direct relationship to the theme of “otherness” described above. As such, it falls within that broad exception recognized by New York courts for newsworthy items or matters of public interest and, therefore, is not actionable under NYCRL §51.... Plaintiff also asserts theories of unjust enrichment and quantum meruit. These two claims, however, are properly treated as one claim.... It is well settled that there is no common law privacy cause of action in New York, and thus the only relief for a violation of a right to privacy falls under NYCRL §50 or NYCRL §51. ...Thus, under New York law, common law claims for unjust enrichment related to unauthorized use of a person's image or likeness are subsumed under §§50, 51....For the reasons stated above, Defendants' motion to dismiss the complaint [dkt. no. 12] must be GRANTED."

The case is Lemerond v. Twentieth Century Fox, 2008 U.S. Dist. LEXIS 26947, 2008 WL 918579 (S.D.N.Y.).

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