Can consent forms protect ‘Borat’ from suits?

First, the form refers to the movie as a “documentary-style film” and not by name, maintaining that the producer, One America Production, Inc., “shall be exclusively entitled” to use or license recorded material that includes the participant “without restriction in the media throughout the universe in perpetuity.”

Translation?

“That ‘We can use your image worldwide, forever,”’ Moss said.

Second, the participant “agrees not to bring at any time in the future” any lawsuits or claims against the producer “or anyone associated with the film,” including assertions of misappropriation or defamation, according to the form. Another section demands that the participant “is not relying upon any promises or statements made by anyone about the nature of the Film or the identity of any other Participants or persons involved in the Film.”

“It basically says, ‘You can’t bring a lawsuit against us even if we make you look bad,”’ Moss said.

Taillieu thinks differently.

“I absolutely have a case,” said the attorney, citing two main legal reasons to invalidate consent agreements: fraud in the inducement (untruths to encourage the signing) and fraud in the inception (knowing the signers didn’t understand what they put their name to).

Taillieu also argued that the men were told that the names of their fraternity and university were not going to be used, “giving my clients relative anonymity.”

“The fact that the fraternity brothers were arguably drunk makes their case potentially stronger,” Leichter said.

“Borat,” of course, is not the first nor the last quasi-documentary film to deal with issues relating to consent, representation and societal satire.

Michael Moore hit with lawsuits
An Iraq veteran in Boston sued filmmaker Michael Moore for $85 million in May, claiming that Moore falsely portrayed him as anti-war in 2004’s “Fahrenheit 9/11” and never asked for his permission to use a clip from an interview the man did with NBC.

In July 2005, a federal judge threw out a libel and defamation lawsuit filed against Moore by the brother of Oklahoma City bombing conspirator Terry Nichols, ruling that statements about the man in Moore’s 2002 Oscar-winning documentary “Bowling for Columbine” were factual and true.

Baron Cohen, in character as Borat, rants against Jews and shocks New York feminists and Southern conservatives alike. In reality, he is a devout Jew and has an actress fiance. His face is everywhere, appearing recently on the covers of Rolling Stone and Entertainment Weekly.

Contending that most consent cases settle out of court, Moss said, “my guess is that this one, with the fraternity brothers, will too, unless it’s thrown out.”

Either way, Baron Cohen and company should be able to afford good representation. Through its first two weekends, “Borat” has rung up $67.8 million at the box office, and is expected to make much more, regardless of consent.

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