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"Whore-Daughter" Hypothetical Heats Up "Borat" Brief

Richard Emery

A “Borat”-related privacy case has inspired some highly creative legal rhetoric, with the plaintiff's attorney presenting a hypothetical scene in which the title character of the hit movie defecates on a photograph of the lawyer's three-year-old daughter.

Richard D. Emery of Emery, Celli, Brinckerhoff & Abady in New York represents a New Yorker who has sued the makers of “Borat” for illegally using footage of him running away from Borat Sagdiyev, the fictional Kazakh portrayed by Sacha Baron Cohen. Jeffrey Lemerond alleges violations of New York's publicity rights law.

In a motion to dismiss, the defense claims the “public interest” exception to the law applies to “a documentary-style film” that “uses comedy to expose Americans’ authentic reactions to an eccentric foreign visitor who exhibits unorthodox opinions and behaviors.”

Lemerond flees in apparent terror after Borat introduces himself to him on a Manhattan street, saying in his heavy accent, “Hello, nice meet you. I’m new in town. My name a Borat.”

Emery's colorful hypothetical appears in his opposition brief as he argues that the defense has read the “public interest” exception too broadly.

“According to Defendant,” he says,” it would be absolutely immune from civil suit if, hypothetically, Defendant were to produce a sequel to the Film in which Borat struggles to understand the meaning of, and Americans' attitudes, toward the First Amendment.”

Emery then proceeds to imagine a scene in which Borat defecates on a “visibly recognizable” photograph of his daughter Nikita, and exclaims, “I do shit puddle on face of whore-daughter of attorney who make mockery of First Amendment!”

Even though Nikita “did nothing to invite or welcome such a horror,” the brief says, she would, under the defense's theory, have “no remedy as a matter of law.”

“We recognize that this is an unorthodox –- and perhaps borderline -– hypothetical to include in a legal memorandum,” Emery confesses. Nevertheless, he continues,

Defendant's motion raises a critical question for this Court and for society as a whole: are there really no limits on Borat's ability to pluck otherwise anonymous citizens out of a crowd and subject them to public ridicule for profit in the name of the “public interest”?

Emery's creativity might be enough to get him a job as a writer of scatalogical humor. But it isn't likely to defeat the motion.

As the defense points out, a Los Angeles judge dismissed a similar case in February, finding that “Borat” addresses issues of public interest and in particular “utilizes the reactions and statements of people such as Plaintiffs to subversively satirize the true targets of the movie: ethnocentrism, sexism, racism, and the like.”

Emery argues his client did not “have any idea that the fictional character Borat was a foreigner,” but the defense says Borat's interaction with Lemerond illustrates the movie's “theme of everyday Americans responding to a stunning culture clash.”

UPDATE ... "Plaintiff's reliance on [ ] outlandish hypothetical fact patterns demonstrates the weakness of his argument," the defense says in a response brief.

By Matthew Heller
8/30/07