In a 13-second segment of the movie, the man, Jeffrey Lemerond, visibly alarmed or frightened, is shown running and shouting “Go away!” and “What are you doing?” at the intersection of Fifth Avenue and 57th Street, as Mr. Cohen’s character, Borat Sagdieyev, a fictitious journalist from Kazakhstan, chases him while trying to hug strangers. Mr. Lemerond was shown twice in the movie and once in a trailer, although his face was scrambled and rendered blurry in the trailer.
In a lawsuit filed last June, Mr. Lemerond sued 20th Century Fox, which distributed the film, arguing that the movie had improperly used his image, without his consent, in violation of a century-old state civil rights law.
In general, the civil rights law prohibits using a private person’s name, portrait or likeness for “advertising purposes or the purposes of trade” without the person’s written permission. But as a judge, Loretta A. Preska of United States District Court in Manhattan, noted in a nine-page ruling on Monday, state courts have interpreted the ban narrowly, as “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person.”
The ban does not apply to “newsworthy events or matters of public interest,” and “newsworthiness” has been taken to include “not only descriptions of actual events, but also articles concerning political happenings, social trends or any subject of public interest.”
Does Borat deserve the same protection as, say, a reporter for The Times? (Readers, be gentle.)
Judge Preska skirted that question, saying the court should be wary about judging what is newsworthy or of public interest. She wrote:
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. The movie challenges its viewers to confront not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from “ordinary” Americans. Indeed, its message lies in that juxtaposition and the implicit accusation that “the time will come when it will disgust you to look in a mirror.” Such clearly falls within the wide scope of what New York courts have held to be a matter of public interest.
Mr. Lemerond vigorously disagrees and is considering filing an appeal, his lawyer said.
“We believe that New York law does not allow a corporation like 20th Century Fox to pluck an otherwise anonymous citizen out of a crowd and subject him to public humiliation in order to make a buck,” said the lawyer, Eric Hecker, of the firm Emery Celli Brinckerhoff & Abady. (source)