Just Sign Here: Borat II, Rudy Giuliani, and the Power of a Written Consent Agreement
Sacha Baron Cohen made headlines again last week,1 reviving his character, Borat Sagdiyev, with the release of Borat Subsequent Moviefilm.2 The sequel was shot in the same guerilla filmmaking style as the original: capturing Baron Cohen in character as Borat, engaging in ridiculous antics with real people under false pretenses, and revealing some less-than-savory truths about American life along the way.3 While the style of Borat II was the same, the substance changed in two noteworthy ways. First, Baron Cohen was accompanied on screen by actress Maris Baklova, playing the role of Borat’s daughter, Tutar.4 Next, it wasn’t Baron Cohen in a neon mankini that lit up the headlines following the films premier. Rather, it was former Mayor of New York turned personal counsel to the president, Rudy Giuliani, depicted laying on his back in a hotel room with Baklova (posing as a reporter) that set the internet ablaze.5. While media outlets have jumped in to give their own take on the scene, and what exactly Mr. Giuliani was doing,6 Giuliani asserts maintains that the video is a “fabrication” and that he conducted himself in a wholly appropriate manner.7 Giuliani is certainly not the first person to be unhappy with their portrayal in one of Baron Cohen’s films–indeed, several people took legal action following their depiction in Borat I–but no one has ever brought a successful claim against the franchise.8 This begs the question: How does he [legally] do it? It is this author’s opinion that the answer to that question is threefold: reliance on a trusting subject, floor-to-ceiling appearance releases, and the primacy of contract law.
The first facet of Baron Cohen’s success can be discussed without much reference to legal doctrine. As a former television producer, I can tell you that consent agreements (sometimes referred to as “releases” or “appearance releases”) are commonplace on every unscripted film and television set. In its most basic form, an appearance release is a contract drafted by a lawyer for production that grants the production company license to use a subject’s name and likeness, in perpetuity, for the purposes of the program and any subsequent advertising. Of course, agreements vary in depth and breadth depending on factors like the nature of the program and the production’s tolerance for risk. The consent agreement essentially functions to protect the production company from legal liability for a number of issues, including but not limited to a subject’s issue with their portrayal. While production teams spend hours protecting themselves by checking and double-checking that the faces on the screen have been released in some capacity, their subjects don’t seem to take the same care.9 Whether it’s an intimidation with the legal jargon, or an inherent trust in producers, this oversight leads to a discussion of Baron Cohen’s second prong of success: the all-encompassing release.
Since the film’s premier, the resounding opinion from entertainment law experts has been that any potential suit for Borat II would fail for the same reason that all previous suits against Borat have failed: participants signed a gap-proof appearance agreement.10 By “gap-proof,” I simply mean that the drafters covered their bases to protect against any and all causes of action twice over. A brief examination of a Borat I motion to dismiss affirmance helps to put the power of the consent agreement into context. The three joined plaintiffs in this suit were each featured in Borat I; each told a different story about participating in an educational film to be shown in a foreign nation; and each signed an identical consent agreement.11 After the film aired, each plaintiff took issue with their portrayal and brought suit, but no claim made it past a motion to dismiss.12 This is because the agreement is structured in such a way that before even discussing the primary claim, a plaintiff must establish that they have the right to bring that claim.13 This can be attributed, in large part to the waivers in the agreement. In signing the consent agreement, the plaintiffs waived the right to bring claims including, but not limited to: infringement of rights, infringement of publicity, intrusion upon seclusion, prima facie tort, and fraud.14 Because of this waiver, plaintiffs looked to prove that they had ben fraudulently induced into assent in order to reclaim their right to sue.15 However, this is where the twice-over contractual protection comes in. In the consent agreement, plaintiffs also assented to a merger clause that stated that they had not relied on “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.”16 Here, the merger clause is essentially the nail in the coffin. The plaintiffs were barred from causes of action because those claims were precluded in the agreement. The only way to overcome that bar was to demonstrate that they were fraudulently induced into signing the agreement. And now we see that the agreement itself warrants that the signee was not influenced by anyone in reaching the agreement. While I cannot speak for the plaintiffs here, I would venture to guess that the likelihood of obtaining a signature on an agreement this expansive falls significantly on whether the person signing actually read it.
This finally brings us to the special sauce of Baron Cohen’s consent agreement: the primacy of contract law. Indeed, in granting a motion to dismiss against three plaintiffs from Borat I, the court eluded to this very principle.17 To ignore the merger clause, they said, would be to “empower these plaintiffs to avoid the clear wording of their own contracts.”18 This was a decision that the court could not “condone under well-settled New York law.”19 This is perhaps the most crucial element discussed here, because without this deference to a bargained for exchange, the parties agreement would be rendered meaningless. While the discussion of the potential costs and benefits of this policy may be outside the scope of this conversation, there remains one key takeaway that requires emphasis: be sure to read before you sign on the dotted line.
E.g., Jacob Sarkisian, The 8 wildest things that happened during the filming of ‘Borat 2’, Insider (Oct. 28, 2020, 3:29 PM), https://www.insider.com/borat-2-craziest-things-filming-sacha-baron-cohen-2020-10 [https://perma.cc/FJ7K-LSG8]; Marina Watts, Here’s What Sacha Baron Cohen Said About the Rudy Giuliani Scene in ‘Borat 2’, Newsweek (Oct. 27, 2020, 11:11 AM), https://www.newsweek.com/heres-what-sacha-baron-cohen-said-about-rudy-giuliani-scene-borat-2-1542428 [https://perma.cc/UC77-KRX7].↩
Borat Subsequent Moviefilm (Amazon Studios 2020).↩
Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan (Twentieth Century Fox 2006).↩
Borat Subsequent Moviefilm (Amazon Studios, 2020).↩
See, e.g., Watts, supra note 1.↩
See id., see, e.g., Emma Nolan, Fox’s Kennedy Tells Rudy Giuliani She Was ‘Grossed Out’ by ‘Borat 2’, Newsweek (Oct. 28, 2020, 7:45 AM), https://www.newsweek.com/rudy-giuliani-kennedy-fox-borat-richard-steele-1542790 [https://perma.cc/8T2R-3UQC].↩
See Rudy W. Giuliani (@RudyGiuliani), Twitter (Oct. 21, 2020, 5:42 PM), https://twitter.com/RudyGiuliani/status/1319031305120657410 [https://perma.cc/3VTY-TMBQ].↩
See Maria Puente, Rudy Giuliani’s ‘Borat 2’ scene: What can he do about it legally? Not a lot, experts say, USA Today (Oct. 23, 2020, 12:19 PM), https://www.usatoday.com/story/entertainment/celebrities/2020/10/23/can-rudy-giuliani-sue-sacha-baron-cohen-borat-2-embarrassment/3731724001/ [https://perma.cc/Z2JF-BWBW].↩
Without citing any factual statistics, I can personally tell you that in the hundreds of releases that I oversaw, I can count on one hand the number of questions I fielded on their actual content.↩
See Puente, supra note 8.↩
Psenicska v. Twentieth Century Fox Film Corp., 2008 WL 4185752 (S.D.N.Y. 2008).↩
See id. at 3.↩
See id. at *4.↩
See id. at 5.↩
See id. at 6.↩