BORAT LAWSUITS: page 4 of 4 ( go to page 1, 2, 3 )

TEN DOLLARS FOR “SEXY TIME”

Another interesting lawsuit was brought by Michael Psenicska, a driving instructor from Perry Hall, Maryland, who was shown in the movie trying to teach Borat how to drive on American streets.  Psenicska was a high school math teacher and he had owned a private driving school for 32 years.  He alleges that he was called by Todd Lewis of One America Productions, Inc. and told that the company was making a “documentary about the integration of foreign people into the American way of life.”

Before filming began, Psenicska was paid five hundred dollars in cash and asked to sign a “Standard Consent Agreement” provided by the producers.  Psenicska alleges that the signing of the agreement occurred just before the shooting, that he was rushed for time, and signed the agreement “without reading or even more than looking where to sign.”  Psenicska claims that no one told him in advance he would be asked to sign papers and “did not have his reading glasses with him.”

Soon after he signed the agreement, the hi-jinks started.  A member of the production crew attached a microphone to his body, and he was told to follow a production van that would have its rear doors open and be equipped with cameras.  A white stretch limousine appeared and Sacha Baron Cohen, dressed in his gray “Borat” suit, got out.  According to Psenicska, Borat then did a “kissie huggie” routine, and tried to get in the back seat of the car.  This is how Psenicska described the driving experience in his complaint:

Psenicska’s complaint contained causes of action based on fraud, violation of New York Civil Right’s Law, Section 51, quantum meruit, and prima facie tort.  He asked for compensatory damages in the amount of $100,000 and punitive damages “to be determined at trial.”

Twentieth Century Fox and the other defendants moved to dismiss the complaint, relying primarily on the “consent agreement” signed by Psenicska prior to filming. Defendants argued that if Psenicska had “taken the few minutes needed to read” the agreement, he would certainly have understood that by signing the document he was agreeing “to waive his right to bring all claims he has now asserted against the Defendants.”

The agreement signed by Psenicska stated that he agreed “to be filmed and audiotaped by the Producer for a documentary-style film.”  Note the use of the expression “documentary-style film,” which at the very least, appears to be somewhat misleading.  The agreement did state:  “It is understood that the Producer hopes to reach a young adult audience by using entertaining content and formats.”

The agreement also provided that the driving instructor was “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.”

Twentieth Century Fox’s motion to dismiss the complaint will probably not be decided until this summer, at the earliest.

Another suit pending in federal court involves a New York businessman who is depicted in the film shouting “go away,” and running down Fifth Avenue to avoid Borat’s attempts to embrace him.  The original suit was filed under the name “John Doe,” but the true identity of the plaintiff was revealed by the New York Post last June.  The Post reported that the plaintiff was Jeffrey Lemerond, a thirty-one year old financial analyst who filed suit against Twentieth Century Fox because he thought the film had depicted him as a fool.

After the Post article appeared, his attorneys filed an amended complaint, using his real name.  Lemerond alleges that the use of his likeness in the film without his consent was illegal.  Originally, the producers had scrambled his face in the trailer promoting the film, but his face was shown in the movie and in the DVD released later.   Lemerond claims that as a result of the producers “outrageous and illegal conduct,” he has “suffered public ridicule, degradation and humiliation.”

Twentieth Century Fox moved to dismiss the complaint, and on March 31 Judge Preska granted the motion.  The Judge held that the defendants were permitted to use film clips involving Lemerond because they were depicting mattes of public interest.  The court observed:  “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 [that] afflict supposedly sophisticated society .  .  .  . Such clearly falls within the wide scope of what New York courts have held to be a matter of public interest.”

No one – through this date at least– has been able to achieve a legal victory over the studio or “Borat.”  Sacha Baron Cohen has been lauded for his talent and has gone on to receive glittering awards.  In January, 2007 the Hollywood Foreign Press awarded him a Golden Globe for Best Performance by an Actor in a Motion Picture – Comedy or Music.  In his acceptance speech, he took the time to thank his director, his brother who did the music for the film, and “every American who has not sued me so far.” end