In an unusual procedural move, a Mississippi judge has ruled that the makers of “Borat” can appeal his decision finding a woman briefly depicted in the “mockumentary” has actionable privacy claims.

Ellen Johnston appears for only three seconds in a “Borat” scene filmed at a Pentecostal camp but alleges the filmmakers portrayed her in a false light and misappropriated her image. She is shown among a crowd of worshippers who ecstatically witness the title character's apparent conversion to their faith.

U.S. District Judge W. Allen Pepper brushed aside “Borat's” First Amendment protections and denied a motion to dismiss in August. The defense then moved for reconsideration or, alternatively, an order certifying the case for interlocutory appeal.

It is highly unusual for appellate courts to intervene before completion of a case and hear interlocutory appeals. But in an Oct. 2 order, Pepper said such an appeal was warranted in Johnston's case “because there is 'a controlling question of law as to which there is substantial ground for difference of opinion.'”

In particular, he continued, the “court agrees that there is an open question in Mississippi whether an invasion of privacy/misappropriation claim is confined to commercial advertising.”

According to the defense, Mississippi limits the tort of misappropriation to publications that used the plaintiff's image in connection with proposing a commercial transaction and the fact that the makers of “Borat” hoped to profit from the movie does not make it a commercial enterprise.

“The First Amendment fully protects the use of this footage in an expressive work,” the defense said in a brief.

But Pepper said that “it seems a matter of common sense to conclude that a motion picture is a commercial enterprise and has a commercial purpose. The purposes of a major motion picture may include intangibles such as providing entertainment or social satire, but they certainly are not free to produce nor are they free to watch.”

Another appellate issue is whether “Borat” is immune from liability under Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), in which the U.S. Supreme Court found that “expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.”

“Borat's” “unique mixture of documentary and fiction ... does not bring it squarely in the realm of Joseph Burstyn, Inc. v. Wilson,” Pepper said.

The judge also commented that “There are indeed many reasonable Americans, especially those who are of an older generation, who are not familiar with the type of humor/satire that is depicted in the film Borat.” Pepper is in his mid-60s.

Johnston v. One America Productions is the first "Borat"-related privacy case to survive a motion to dismiss. The 5th U.S. Circuit Court of Appeals has 10 days in which to decide whether to hear the filmmakers' appeal.