Several mysteries were exposed by the movie Borat. Non-actors were so mystified by the actor playing Borat, that they freely acted foolishly in what they believed was a documentary. Borat learned that Pamela Anderson had shared her mysteries, such that his desire for her to be his bride was negated (those who love can be the last to know what isn’t a mystery to everyone else). All these, and other mysteries, were evaluated by USDJ W. Allen Pepper, Jr., (N.D. Miss.) in dismissing some of the damage claims pleaded by Ellen Johnson, who appears in the scene at the Pentecostal church where Borat acts like he is having a religious conversion (to assuage his despair over Pamela being inutile as a proper bride).
The opening analysis reflects on the new standard for Rule 12(b)(6) motions, which require factual allegations adequate to present a claim that is not speculative. It moves from that threshold, noting that accompanying the briefs were tracts from the “World Christian Encyclopedia,” a copy of “Clearance and Copyright: Everything the Independent Filmmaker Needs to Know” and a DVD of the movie Borat.
The decision winnows the claims down to misuse of plaintiff’s likeness for commercial gain without her permission. It was sort of clear that no model release was signed by plaintiff, or that one valid only in Kazahkstan was obtained. The “defendants did not obtain the plaintiff’s explicit permission to be featured in any other film except a religious documentary that would be shown in a foreign country.”
Apparently the book “Everything An Independent Filmmaker Needs to Know” needs some revisions in the chapter on model releases, to cover non-documentary, non-religious, films to be commercially exploited in the U.S., as construed under the common law of Mississippi. In the section of the opinion on commercial misuse of likeness, the mystery of who that guy is, whose picture is an frame when you buy it. It’s Harbin, from the case of Harbin v. Jennings, where “Harbin, a High School student sued a photographer and a picture frame company [over] use of Harbin’s photograph in thousands of picture frames to be widely distributed and displayed in numerous retail establishments.” That guy – but, I digress.
Based on that precedent, Judge Pepper declined to dismiss Johnson’s claim that her likeness was misappropriated for commercial use without her permission. He did dismiss her “intrusion upon seclusion” claim, despite its iambic octameter. Not much was stated about the claim of gross negligence, and so, that claim stayed in the case too. Will that end with the instruction: “Members of the jury, if you find that Borat was ‘gross’ and that the described scenes (as viewed consistent with standards of decency prevailing in Mississippi) were emblematic of ‘negligence,’ then you will check the ‘gross!!!’ box on the verdict form provided.”