A New York judge has, perhaps mercifully, put an end to the litigation over “Borat,” finding that two etiquette teachers and a driving instructor were not duped into appearing in the hit “mockumentary.”

No fewer than 16 plaintiffs ranging from fraternity brothers to Romanian villagers (see table) were involved in the 10 suits filed against the makers of “Borat.” But only one of them -– a Mississippi woman who appears for only three seconds in a scene depicting a crowd of worshippers at a Pentecostal camp meeting –- survived a motion to dismiss.

The last three pending cases were those of etiquette teachers Kathie Martin and Cindy Streit, originally filed in Alabama, and driving instructor Michael Psenicska. Four people whom Streit invited to have dinner with title character Borat Sagdiyev joined her as plaintiffs.

Dismissing all three cases, U.S. District Judge Loretta A. Preska ruled last week that each plaintiff had “executed a valid agreement releasing the claims he or she now attempts to litigate.” The agreement documented each plaintiff's consent to appear in a “documentary-style ... motion picture” and to waive any claim for infringement of publicity rights, invasion of privacy or fraud.

The plaintiffs argued that the agreement was not enforceable because the term “documentary-style film” is ambiguous. But Preska recognized that the “operative word” is “style” and not “documentary.”

“The fact that Borat is a fictional character ... does nothing to diminish the fact that his fictional story is told in the style of a true one,” she said in her opinion. “Indeed, Borat owes such effectiveness as it may have to that very fact.”

Preska also said the plaintiffs could not allege that 20th Century Fox and One America Productions duped them by misrepresenting “Borat” as a documentary for Belarus television. In the liability release, she noted, each plaintiff “waived his or her reliance on 'any promises or statements made by anyone about the nature of the Film.'”

“[A] Plaintiff may not claim to have relied on a statement upon which he or she has explicitly disclaimed reliance,” she added.

In the only success for a “Borat” plaintiff, a Mississippi judge with an at best primitive understanding of the “mockumentary” genre held that Ellen Johnston could proceed with her case alleging the film portrayed her in a false light. She was among the Pentecostal worshippers who ecstatically witness Borat's apparent conversion to their faith.

“[A] person in the plaintiff’s position would believe others would believe she willingly participated in a mocking of her religion,” U.S. District Judge W. Allen Pepper laughably reasoned.

The parties reached a confidential settlement and stipulated to a dismissal of the case in July. But it's hard to imagine that Fox agreed to pay Johnston even a nominal amount.

The etiquette teachers' cases were transferred to New York after the Alabama Supreme Court ruled that the forum-selection clause in the contract between Martin and “Borat” producers was enforceable. Streit's dinner party invitation turned into the infamous scene in which Borat horrifies the well-heeled guests by returning from a bathroom visit with a plastic bag filled with what appears to be his bodily waste.

By Matthew Heller
9/7/08