Borat’s Contract
posted by Nate Oman
Sacha Cohen’s movie “Borat” consists of a series of encounters in which the British comedian gets Americans to say and do all sorts of stupid things on camera by posing as a clueless — and often naively offensive — Central Asian reporter. (Heidi apparently liked the movie; given the presence of four-year-olds in my life I’ll have to wait for the DVD.) The BBC, which clearly relishes the prospect of an entire movie devoted to showing what morons the colonials are, reports briefly on the legal side of the gag:
They [Cohen's subjects...victims?] would be told about the foreign correspondent making a film about life in the US, with the pitch tailored to each person’s specialist subject.
Then on the day of the interview, they would be presented with a release form at the last minute, be paid in cash and, finally, Borat would amble in, beginning with some serious subjects before starting his provocative routine.
I am very curious to see what is in that contract. It would be interesting to see the extent that it will hold up if Cohen gets to experience another aspect of trans-Atlantic barbarism: a good ‘ole fasion American lawsuit. (See the second to last paragraph)
[Update: Here is a copy of the contract via Slate]
November 8, 2006 at 12:07 pm
Posted in: Contract Law & Beyond, Culture
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Responses (8)
M. Hodak - November 8, 2006 at 1:38 pm
That Section 4 is a doozy. I’d like to think that I wouldn’t sign that for a couple hundred bucks. Then again, God knows what I’ve signed over the years.
Miriam Cherry - November 8, 2006 at 11:04 pm
I don’t understand why you think Cohen would be subject to a lawsuit. What’s the plaintiff’s claim? You taped me saying stupid things and making racist comments? These folks knew they were being filmed, and they signed releases.
Nate Oman - November 9, 2006 at 9:37 am
Miriam: It seems that there is at least the possibility of fraud, as he obtained their consent by lying to them.
Miriam Cherry - November 9, 2006 at 5:46 pm
I don’t think it matters. They knew that they were being interviewed and that it would be public (i.e. broadcast).
I agree with what Tadas Klimas said on the AALS contracts listserve:
“Whenever we speak, do we not invite the biting retort? The sarcastic
remark? Especially on camera.”
Nate Oman - November 9, 2006 at 8:48 pm
I’m not so sure. Obviously, I’d have to look at the case law on this, but I think that the calculus involved in signing a release when you think you are talking with a journalist and signing a release when you are talking with a comedian who is going to try to make you look funny is different. I have not special sympathy for the racists that Cohen sends up in his film, but the set up does strike me as fundamentally deceptive, especially in light of the legal claims that the parties are signing away in the contract, which was presented to them under false pretenses.
Dana - November 16, 2006 at 9:55 pm
How are we sure that the contract was presented under false pretense? I sounds like he said she said in regards to how they were enticed to sign the contract.
Ben H - November 16, 2006 at 11:14 pm
There seem to be three main issues:
1) Can they get out of it based on their intoxication claim; and
2) Is there a public policy issue with disclaiming a right to bring action in tort.
3) Was there fraud in the inducement?
With regards to the intoxicatio claim, courts seem to be unlikely to overturn unless they were very drunk, to the point of being “unable to understand in a reasonable manner” or “unable to act in a reasonable manner.” (See 2nd Restatement Section 16). That appears to be a very high standard and would require more than just being “loosened up.
With regards to the public policy concern, I would think that it would be outweighed by the concern to protect freedom of the press. It would be interesting to see the arguments that they would make on this point.
However, even if they were to get the clauses disclaiming actions in tort voided, I can’t imagine they would actually win on them. The movie doesn’t have any false information, they said what they said.
Fraud in the inducement would seem to be very difficult to prove, the contract is actually very explicit to what they were signing. It even gave examples of rights they were waiving. There is little to no chance that if they had read the contract they would not know the terms that they were agreeing to.
Lastly, as many have already said, I think we only need to look to the “Girls Gone Wild Videos” to see an example of drunken contract signing that has been upheld. If those contracts can be upheld, it seems that this one is ironclad.
Any comments on my quick analysis would be appriciated.
TonyK - December 4, 2006 at 11:04 pm
I don’t think you’ll need a whole lot of time in the library to realize that someone specifically disclaiming reliance on any oral statements will have difficulty challenging a contract based those statements. That disclaimer is certainly in plain language, and a court should find it difficult to suggest other terms in the face of a total lack of ambiguity as to the terms of the agreement on its face.
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