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The Daily Wildcat

The Daily Wildcat

 

    Borat: For Make Glorious Lawsuit

    “”Sacha Baron Cohen is a prankster.”” This is the first sentence of a civil complaint filed last week against 20th Century Fox and three production companies following the release of the smash mockumentary “”Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan.”” Cohen, of course, is the title character of that film. The plaintiffs in the lawsuit are two Southern fraternity boys who allege that they were duped into participating in the movie under false pretenses and under the influence of alcohol.

    For the small handful of you who have yet to see the film, “”Borat”” follows Cohen’s Kazakh journalist character as he travels across the United States mocking Americans for racism, sexism, patriotism and downright stupidity. The point is to make the audience cringe with embarrassment and humiliation at the comedic encounters, but ultimately to redeem us by laughing at our own discomfort – and at our own culture.ÿ

    Cohen’s formula has worked. “”Borat”” debuted at No. 1 at the box office, raking in an estimated $26.5 million in the first weekend alone. “”High-Five!”” ÿ

    But two of the film’s “”co-stars”” now have no interest in high-fiving Borat. The scene in which they appeared, and which gave rise to this lawsuit, involves Borat’s encounter with some young American “”scholars”” – three fraternity boys from a South Carolina university who pick up Borat in an RV as he is hitchhiking along the highway. After a bout of drinking, the frat boys go on a racist and misogynistic rant that ranks pretty high on the cringe scale.

    Now, two of the three boys are suing. Although they signed consent forms, the plaintiffs are claiming that they were encouraged by the production team to engage “”in behavior that they otherwise would not have engaged in.”” Specifically, the complaint alleges that the boys were interviewed for a spot in the film and were assured that the movie would only be aired outside the United States. The plaintiffs also allege that prior to filming they were taken to a bar by the production crew “”to loosen up,”” after which they signed a consent form while under the influence of alcohol. One of the plaintiffs was allegedly under the age of 21. ÿ

    As a result of the film airing in America, the plaintiffs now argue that they are “”the objects of ridicule, humiliation, mental anguish and emotional and physical distress, loss of reputation, goodwill and standing in the community.””ÿ

    Hmmm, maybe the boys should have thought about their “”standing in the community”” before they said they wished they had slaves on camera. But, I digress.ÿ

    The question now is whether the drunken, racist ravings of a few moronic college students will result in a financial windfall to them. It’s tough to say, but here’s how some of the legal issues break down:ÿ

    A standard consent form will generally relieve a party of liability in certain situations, and in cases like these, probably allow for the use of one’s likeness in commercial productions. A consent form is a legal contract, and its specific terms are decided on by the parties to it.

    If the proper legal elements are satisfied, a contract will be enforceable. Enforcement in this context probably means that the frat boys are forbidden from suing as a result of their appearance on film.ÿ

    But parties can raise certain defenses that affect assent, and, if established, may nullify the agreement. Two of these defenses are mental impairment (due to intoxication) and misrepresentation.

    A party may generally avoid a contract if he was too intoxicated to understand the nature and consequences of the transaction (or to act in a reasonable manner in relation to the transaction), and the other party has reason to know that. But, according to Jamie Ratner, a contracts professor at the James E. Rogers College of Law, “”Just because you are really drunk doesn’t mean you flat out lack capacity.”” In other words, an intoxication defense is a tough sell.

    An aggrieved party may also avoid a contract under a misrepresentation defense if he reasonably relied on a material or fraudulent assertion to his detriment. The claim that the film would only be released outside the United States may have induced such reliance.

    These are ultimately questions that will be decided in court. But if the consent agreement can be set aside by one of these defenses (and trust me, that is a big if), then the plaintiffs will be free to pursue their tort claims, which yield higher damages.ÿ

    In all likelihood, though, this case will be dismissed, or it will settle out of court, which is probably in the best interests of the plaintiffs anyway. The frat boys likely want to avoid the publicity of a trial as well as the monumental task of convincing a jury to have sympathy for a group of bigoted imbeciles.ÿ

    In any case, welcome to the legal landscape of America, Borat. It is a place where production companies can exploit dim college students for profit, and where dim college students can blame production companies for their own tasteless and offensive behavior. Not so verrry naice. ÿ

    Jon Riches is a third-year law student. He can be reached at letters@wildcat.arizona.edu.

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