Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

Legal Analysis of the Borat Frat Boy Lawsuit

At first blush, the Borat frat boy suit seems nothing like Cantrell, the law of the land when it comes to false light. The chief difference is in the publication method: the precise words in Joe Eszterhas’ article about the Cantrell family could be scrutinized, and misrepresentations numbered, labeled, and compared to what was then alleged to be reality. The plaintiffs in the Borat case were videotaped, and the content to which they are objecting is undeniably their own. Demonstrating knowing or reckless disregard for the truth will be an uphill climb for the Borat plaintiffs, despite their claim that the film “falsely attributed to Plaintiffs certain stereotypical views of minorities” due to the level of autonomy and control that the plaintiffs retained up to the point where they agreed to participate.

Nevertheless, a colorable false light claim can be made where the complaining party was videotaped. The Borat claimants will likely rely a great deal on Gritzke v. M.R.A. Holding, LLC, where a Florida district court denied a motion to dismiss filed by producers of Girls Gone Wild, who filed the motion in response to a false light claim brought by a college girl photographed by the producers flashing her breasts during Mardi Gras. The producers used a video still of Gritzke on the video box cover. The producers argued that Gritzke’s actions were documentable as a newsworthy, extremely public event, elements that should foreclose any cause of action. The court disagreed, distinguishing between “true and accurate depiction[s] of a newsworthy event” and “[making the] plaintiff the focus of advertisements of its videotape, by prominently displaying plaintiff on the videotape package, in advertisements, and on defendant’s web site.

Like Gritzke, the Borat John Does were: (1) drunk, and thus possibly incapable of providing informed consent; and (2) non-public figures whose subsequent infamy was impossible to rehabilitate–both sustained “permanent” injuries to their likenesses.

As for the first point, it’s difficult to tell from the facts whether Gritzke was actually drunk–but under a, say, reasonable Mardi Gras attendee standard, a lens through which I am personally familiar, she would be rare and exceptional individual if she were not drunk at the moment she lifted her shirt. As for Gritzke’s informed consent, the court’s hair splitting is at the root of why the Gritzke decision is problematic–the court essentially acknowledged that Gritzke waived consent as to being photographed, but she retained her right to not be commercially exploited. The problem, of course, is that there exists an array of degrees of commercial exploitation, and it could easily be argued that every girl depicted in the Girls Gone Wild videotape series is commercially exploited. The court frustratingly fails to analyze the issue beyond the quoted passage.

The Borat John Does were not only drunk, but exceptionally drunk–indeed, the point of Cohen’s segment was to expose their deepest prejudices by way of getting them drunk. Under the facts as alleged, the producers did not spring the “Standard Consent Agreement” on plaintiffs until “after awhile of heavy drinking.” But presumably, they were already aware of the goals of the producer–they were to be paid $200 to get drunk and express themselves. The plaintiffs will make much of the fact that they did not sign the Standard Consent Agreement until they were already drunk, but I have a difficult time imagining a court troubling itself with timeline related discovery going to the issue of (a) the degree of drunkenness they were when they signed the agreements; and (b) whether it even mattered that they were drunk, since they were likely made entirely aware of what their appearance would entail. These questions go to the contract and fraud claims, however, not the false light claim.

The second factor where the Borat plaintiffs resemble the Gritzke and Cantrell plaintiffs is how each is/was a non-public person plucked from obscurity and thrust directly into unwelcome, life-altering notoriety. The courts have found compassion for similarly situated non-public figures. There is, of course, an important factual difference between Cantrell and Gritzke, on one hand, and the Borat plaintiffs on the other, in that the Borat plaintiffs invited at least some measure of publicity by participating. Where Gritzke and Cantrell were “plucked from obscurity” the Borat plaintiffs are less sympathetic in that they “responded to an offer to be plucked.”

The Borat plaintiffs argue, in response to this, that they were told that the footage would only be shown in Europe. Presumably, they would have acted differently had they known that the film would be shown in America; their racism and misogyny would have been less overt, perhaps, or tailored to continental audiences. Or, more likely, they will argue that they would have refused to perform entirely. Despite that this seems difficult to believe, it might have merit–we don’t know what thought process led them to agree to appear as they did. The plaintiffs will further point to the devious trickery by Cohen, who lured them into the behavior they exhibited by acting along with them, and encouraging their worst. Indeed, that was largely the point of the movie. These factors go to the rescission and fraud claims, however, not the false light claim.

However, if you work from the presumption that they were fraudulently led to perform, the plaintiffs revert nearer to the status of Gritzke and Cantrell–innocent recipients of unwanted publicity which caused injury … pawns in a game they never chose to play. One interesting factor that almost works for the plaintiffs here is that the size of their injury is enormous, due to the fact that Cohen’s movie is enormously successful. Even Gritzke’s naked body on thousands of video game boxes occurred in relative anonymity when compared to the millions of people who have already or who will eventually view the Borat plaintiffs in all their assholery. This argument proves too much, of course, because ultimately the audience is attributing “certain stereotypical views of minorities” to the plaintiffs by their own words. Plaintiffs’ reliance on false attribution requires one to cavort through an inferential obstacle course that presumes at various stages that the plaintiffs would not have acted as they did if only x, y, and z had occurred.

Of course, there are significant non-legal real world considerations that are difficult to detach from when thinking this problem out. First, the views the plaintiffs expressed in the movie were per se repugnant. I have a difficult time imagining any jury, much less a jury with an African-American member on it, being able to put aside the fact that the plaintiff endorsed a return to slavery, and that he would not have said this had he not been drunk. Indeed, second, as was pointed out by many a late night comedian only a few months ago, alcohol is generally not thought of as causing one to lie, but rather acts as a truth serum. See, in re Mel Gibson’s Unfortunate Comments about The Jews (2006).

In conclusion, plaintiffs will need to hang their case on Gritzke; and indeed, there is much to go on there. But ultimately the Borat plaintiffs are distinguishable even from Gritzke, as Gritzke was not party to any agreement with the Girls Gone Wild producers, whereas the Borat plaintiffs were. It should also be pointed out that Gritzke was very possibly wrongly decided and has not been followed by any court as to the false light claim.

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