November 08, 2006
Borat: Anyone Need a Lawyer?
Posted by Gordon Smith

From an interesting discussion on the AALS Contracts listserve, I was directed to a story about how the people who appear in Borat got there:

They would be contacted by a woman calling herself Chelsea Barnard from a fictional film company, One America Productions.

They would be told about the foreign correspondent making a film about life in the US, with the pitch tailored to each person's specialist subject.

Then on the day of the interview, they would be presented with a release form at the last minute, be paid in cash and, finally, Borat would amble in, beginning with some serious subjects before starting his provocative routine.

That release form mentioned in the last paragraph is here. One obvious problem with the release jumps off the page: One America Productions is fictional!

Is Sacha Baron Cohen a "foreign correspondent"? Well, he is British.

The release has a merger clause, but I am wondering about a fraud claim. I think Nate is wondering the same thing.

UPDATE: Here is a complaint filed in California. The first cause of action: fraud.

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Comments (7)

1. Posted by Michael Risch on November 8, 2006 @ 19:37 | Permalink

False company name aside, the biggest issue seems to me the part about the "documentary-style" film. If I'm signing a release, I might accept less money than I would for a mainstream entertainment release. Similarly, I might not agree to the release at all if I know it is not a documentary.


2. Posted by Matt on November 9, 2006 @ 8:41 | Permalink

All corporations are "fictional." I assume that One America Productions is actually incorporated somewhere, and the release allows it to assign its rights freely (presumably to the real company that released the movie). The description of the film seems accurate enough: it's "documentary-style" but "hopes to reach a young adult audience by using entertaining content and formats." This release seems pretty well-drafted to me, though I'm sympathetic to the point that if people knew this was a likely blockbuster they'd have held out for more money (or, of course, not done it).


3. Posted by Gordon Smith on November 9, 2006 @ 8:54 | Permalink

Matt, "All corporations are fictional."

You are missing the point. The issue has nothing to do with the essence of the corporate entity, but whether One America Productions is a "fictional film company." Even if there is such a corporation (I, too, assume it must exist), it is not a film company, and the release portrays OAP as the "Producer."

I am not very sympathetic to the argument about the nature of the film. Notice that the release says that it is a "documentary-style" film, and from what I have read, Borat may fit that description. As to whether something will be a blockbuster, how would anyone know in advance, and why would it matter?


4. Posted by Michael Risch on November 10, 2006 @ 9:53 | Permalink

Looks like someone needed a lawyer...

http://news.yahoo.com/s/ap/20061110/ap_en_ot/film_borat_lawsuit_5

Perhaps the incapacitation defense will affect either the release or the integration clause.


5. Posted by louie -lou on November 21, 2006 @ 9:23 | Permalink

hey hey borat is a comical genious but he has balls and if that means you take risks yea and that also means you get in trouble but not if you have a viable cotract nomatter if the clients are drunk


6. Posted by TonyK on December 4, 2006 @ 21:27 | Permalink

Not to nitpick too much, but here's a few observations:
Even in the unlikely situation that it is not a valid corporation, "One America Productions" is nevertheless a "producer".

1) It is not a "film company". Who said a producer has to be a film company? Doctors and lawyers and hedge fund managers and all sorts of people have been producers. A producer is a general term for one who creates or pays for the creation of material. They produce the film.

2) They are in fact the producers, for the purpose of this contract, because they were defined in the contract as "the producer". Even if they defined One America Productions as "the donkey" or even the "badly-mustachioed fraudster using a purported entity" in a contract assigning all rights and waiving all claims to such an entity would still be valid.

3) The contract is expressly assignable, so any claim that the "real" producer is Fox or some related entity is of no consequence.

4) Who cares what "type of company" the (purported?) entity was...I'd guess they were incorporated either for this purpose or "for any lawful purpose" and either way it wouldn't matter...any corporation can enter a non-core business unless its shareholders can prevent it.

5)If you're gonna claim they would have asked for more in retrospect, wouldn't the California courts be bogged down by claims from every caterer to extra to star on just about every successful film?

6)Documentary-style: it was. So was Dr. Strangelove. Maybe even "Bobby."


7. Posted by Greg on December 16, 2007 @ 17:06 | Permalink

I am curious if anyone actually read the complaint. It is filled with typos and strange, vague language that does not appear to be professional in any way. Note the use of the word "isle" rather than aisle in reference to the Capitol.

Does anyone know if the firm that filed this complaint actually exists?

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