It’s a question many reality-TV or documentary participants have had to ponder when handed a consent form: how embarrassing will it be when the footage goes public?
The answer came quickly for some of those who signed on for the “documentary” that ended up as the U.S. and A.’s No. 1 movie, Sacha Baron Cohen’s satirical “Borat: Cultural Learnings of America for Make Benefit of Glorious Nation of Kazakhstan.”
That’s the squirmy situation that several people seen in the movie have come forward to angrily complain about, some with lawyers.
The filmmaker duped them, they charge. They signed a waiver, they allege, offered under the pretext that the movie was a documentary that would only be shown outside of the U.S.
As Borat might put it: Will Baron Cohen and 20th Century Fox, the film’s studio, have to swallow crow of lawsuit?
The big question: How much weight do consent forms really carry?
Not enough, the lawyer for two “Borat”-ized fraternity brothers intends to prove.
The South Carolina University students are suing 20th Century Fox and three production companies, their lawsuit claiming that the drunken, misogynistic and racist comments they made in the film were taken out of context and that crew members plied them with drinks before they signed any forms.
Studio spokesman Gregg Brilliant would not release a copy of the consent agreement this week to The Associated Press. He maintained that the “lawsuit has no merit,” and said the waiver was going to be filed in court Monday as part of the ongoing lawsuit.
Web site TMZ.com, however, has posted the detailed form online, leading to more scrutiny, and questions.
“Generally these releases will hold up in court unless the person suing can prove that he signed the agreement under false pretenses or while incapacitated,” said entertainment attorney Aaron Moss, who works for top L.A. law firm Greenberg Glusker. “Even if a participant was lied to, a court may find that the person should have read the contract and that if he didn’t, it’s essentially his own fault.”
“It’s a legal doctrine that says the contract supersedes the oral representation relayed,” he explained.
Moss and longtime entertainment attorney Kevin Leichter — who has represented celebrities as well as major studios such as Warner Bros. — agree that they were not aware of any cases in which a consent form was deemed invalid. Generalized terminology strengthens these contracts, they said.
Lawsuits challenging such forms, Leichter said, “are not all that common. I think the reason is a well drafted consent form is a serious barrier to a lawsuit claiming lack of consent.”
If that wasn’t the case, Leichter acknowledged, TV reality shows would be slammed with more suits.
No copy of signed waiverAttorney Olivier Taillieu, who represents the fraternity brothers, said Wednesday that the two young men were never given a copy of the waiver they drunkenly signed, leaving him and his clients to use the online copy relayed to sites such as Slate.com via TMZ.
Washington-based public speaking coach Pat Haggerty, who appeared in the film as a humor consultant to the peculiar Kazakh journalist Borat — portrayed by Baron Cohen, a British comedian — said Wednesday that he was not given a copy of the waiver he signed, though he has requested one for more than a year.
On Thursday, Cindy Streit of Birmingham, Ala.-based company Etiquette Training Services said she filed a complaint with California Attorney General Bill Lockyer, requesting an investigation into possible violations regarding her appearance in the film.
In the scene, Borat, at a dinner party she hosted, handed the 59-year-old business owner a plastic bag supposedly containing excrement. She said she had been told beforehand that the filming would solely be for a documentary in Belarus.
Ronald Miller of Natchez, Miss., who attended the disastrous dinner, told The Associated Press this week that he also never received a copy of the consent form he signed.
“When I looked it over, I did not see the name of 20th Century Fox or the actor,” Miller recalled.
However, as long as a participant agrees to a waiver and signs it, it doesn’t matter whether that person has a copy or not, Moss said.
“It’s certainly fishy though,” he added. “It certainly makes it more suspicious if it was procured by false pretenses.”
Moss’ assessment of the waiver, after reading the copy obtained by TMZ.com, was that it was “pretty standard” as consent agreements go, but that it did “go a little further than most I’ve seen.”
First, the form refers to the movie as a “documentary-style film” and not by name, maintaining that the producer, One America Production, Inc., “shall be exclusively entitled” to use or license recorded material that includes the participant “without restriction in the media throughout the universe in perpetuity.”
“That ‘We can use your image worldwide, forever,”’ Moss said.
Second, the participant “agrees not to bring at any time in the future” any lawsuits or claims against the producer “or anyone associated with the film,” including assertions of misappropriation or defamation, according to the form. Another section demands that the participant “is not relying upon 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.”
“It basically says, ‘You can’t bring a lawsuit against us even if we make you look bad,”’ Moss said.
Taillieu thinks differently.
“I absolutely have a case,” said the attorney, citing two main legal reasons to invalidate consent agreements: fraud in the inducement (untruths to encourage the signing) and fraud in the inception (knowing the signers didn’t understand what they put their name to).
Taillieu also argued that the men were told that the names of their fraternity and university were not going to be used, “giving my clients relative anonymity.”
“The fact that the fraternity brothers were arguably drunk makes their case potentially stronger,” Leichter said.
“Borat,” of course, is not the first nor the last quasi-documentary film to deal with issues relating to consent, representation and societal satire.
Michael Moore hit with lawsuitsAn Iraq veteran in Boston sued filmmaker Michael Moore for $85 million in May, claiming that Moore falsely portrayed him as anti-war in 2004’s “Fahrenheit 9/11” and never asked for his permission to use a clip from an interview the man did with NBC.
In July 2005, a federal judge threw out a libel and defamation lawsuit filed against Moore by the brother of Oklahoma City bombing conspirator Terry Nichols, ruling that statements about the man in Moore’s 2002 Oscar-winning documentary “Bowling for Columbine” were factual and true.
Baron Cohen, in character as Borat, rants against Jews and shocks New York feminists and Southern conservatives alike. In reality, he is a devout Jew and has an actress fiance. His face is everywhere, appearing recently on the covers of Rolling Stone and Entertainment Weekly.
Contending that most consent cases settle out of court, Moss said, “my guess is that this one, with the fraternity brothers, will too, unless it’s thrown out.”
Either way, Baron Cohen and company should be able to afford good representation. Through its first two weekends, “Borat” has rung up $67.8 million at the box office, and is expected to make much more, regardless of consent.