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Monday, November 13, 2006
The Lawyer Goes to Borat
Like many of you, I recently emerged, astounded and outraged-in-a-good-way from the hilarious film Borat: Cultural Learnings of America... Part of my joy was wondering how in heaven's name they don't get sued.
(Actually, they just did get sued, by the town of Glod, Romania - here's the story and a great I'm-not-supposed-to-laugh-at-this photo of the one-armed man from the movie.)
Slate ran an excellent little piece addressing what I'm sure must have been on the minds of other legal viewers of the film: the legal releases. If you haven't seen the film, suffice to say that real people are humiliated, mocked, and made to look like buffoons, racists, and a whole range of shocking (and often disturbing) fools. That's the point of the film -- the genre of which now has to be invented; "nonfiction mockumentary" maybe -- and it's the genius of it. But it's not so funny if you're the guy who now looks like a racist in America's #1 film.
Slate's piece actually includes the release itself, which is an excellent job of overlawyering, although Slate's reporter did wonder whether some people could claim they signed the release under false pretenses, especially as they were signed before the filming.
What I'm curious about is whether there's ever going to be a backlash against fine-print itself. Everyone knows that no one reads warning labels, disclaimers, privacy policies, and the like. Here, I'd certainly argue that a reasonable person would carefully read the Borat release, since after all you're about to be on film -- but the insults are so extreme (albeit, often, self-inflicted) that I wonder if it might set rolling a kind of anti-fine-print reaction. A lot of my work around legalism and anti-legalism discusses how deeply Americans loathe this kind of law and legalism, and that they do so for curiously religious reasons (finding it "mechanistic" or "soulless," for example). Here it feels like the regime of releases is being pushed to an extreme.
Torts and releases therefrom isn't my area of law - I wonder if someone has some more thoughts on this. Has there been any plausible alternative to legal glossolalia?
Incidentally, Sacha Baron Cohen is a good friend of a friend of mine, and apparently there is indeed a huge pile of Borat and Ali G outtake material that they couldn't get releases for. Personally, I'm still wondering how they could possibly get away with the "bear in the ice cream truck" scene...
Posted by Jay Michaelson on November 13, 2006 at 03:30 PM in Torts | Permalink
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Comments
As to the "irrevocable" and "perpetual" issue, I believe you've misunderstood what those terms do in a license agreement.
Perpetual means that they can continue to use the material during the term of the license. Perpetual does not imply that the license to use can never be terminated or rescinded.
Irrevocable means that the licensor cannot terminate or rescind the grant of the license even upon licensee's breach. However, that doesn't mean that the licensee can't terminate the grant or the license. As such, frequently perpetual and irrevocable grants are conditioned explicitly upon payment of license fees. There's a relatively uninteresting case looking at this point: Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 38 U.S.P.Q.2d 1196 (9th Cir. 1996).
It is true that the way the terms are used it is a bit dissonant, and I wouldn't have written them that way. However, the ultimate effect of the provision is to give the licensee the power to exercise the licensor's right to end the license.
Posted by: Mike | Nov 22, 2006 10:39:29 AM
I've been following the commentary here, on Concurring Opinions, and the AALS contracts listserve, and all I can say is, sign me up for the Borat legal defense team!
Posted by: Miriam Cherry | Nov 14, 2006 12:08:25 AM
"any idea how a court would handle a dispute arising under such terms?"
Against the drafter?
Posted by: a | Nov 13, 2006 9:40:57 PM
Or why someone would write the terms this way?
Posted by: Jed Adam | Nov 13, 2006 8:03:32 PM
The terms of use for Facebook, a popular social networking site, state that the user grants the operating company an "irrevocable" and "perpetual" license to use, distribute, and sub-license content posted by the user. The next sentence states that this license "will automatically expire" if the user removes the content. I'm not a lawyer or qualified to give legal advice, but these two provisions, as plain language, seem contradictory. Any idea how a court would handle a dispute arising under such terms?
Posted by: Jed Adam | Nov 13, 2006 6:31:06 PM
How cool that you're friends with such a great entertainer!
I just saw the film over the weekend and enjoyed it. The part that made me wonder the most about "releases" was (minor spoiler alert) the scene near the end with Pam Anderson. Minor spoiler alert: Even if she signed a release, if she didn't know what was coming, would that release be enforceable?
In torts, courts at least sometimes read waivers of claims of intentional torts fairly narrowly, or at least to include only the types of intentional torts people engaging in that activity would usually or reasonably expect. Even though the waiver purports to exclude suits for all intentional torts, if Cohen had shot somebody, one would hope a court wouldn't hold that claim waived. Of course he didn't shoot anybody, he just made some people look foolish (often deservingly, it seems). But the scene with Anderson -- if she didn't know what was coming -- might be pushing it a bit, at least for me.
Posted by: Joseph Slater | Nov 13, 2006 3:51:16 PM
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