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Lemerond v. Twentieth Century Fox Film Corp.

A federal district court judge in New York dismissed a complaint for unlawful use of plaintiff’s image in a case brought by a man shown in the movie Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan as he runs down Manhattan’s Fifth Avenue away from comedian Sacha Baron Cohen, playing the Borat character, a fictional Kazakh television personality. In the 13-second clip in the movie and the advertisement trailer, plaintiff Jeffrey Lemerond is shown running away from Cohen’s character and yelling “Get away!” and “What are you doing?” Plaintiff alleged that the movie’s producer, Twentieth Century Fox, never obtained consent to use his image. In the trailer, plaintiff’s face is scrambled, rendering his likeness “blurry” and indiscernible but his face is not scrambled in the film itself.

Plaintiff asserted claims against Fox under New York Civil Rights Law § 51, which provides limited protection for any person whose image is used for advertising or trade purposes without written consent, and under New York common law for unjust enrichment and quantum meruit. Addressing the statutory claim under §51, the court found that the only question was whether the plaintiff’s likeness was used for “advertising purposes or for the purposes of trade” and held that it is “beyond doubt” that the movie fits squarely within the newsworthiness exception to the New York statute.

The court explained that in determining whether something is newsworthy courts consider solely the content rather than the publisher’s “motive to increase circulation” and that courts should be wary “not to supplant the editorial judgment of the media in determining what is ‘newsworthy’ or of ‘public interest.’”

The court went on to cite a series of decisions that have observed that this “newsworthiness” exception should be broadly construed and has been found to include “not only descriptions of actual events, but also articles concerning political happenings, social trends or any subject of public interest.”

Applying this liberal construction of the newsworthiness exception to plaintiff’s case, the court stated:

“[O]f course, the movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewers. As its core, however, Borat attempts an ironic commentary of 'modern' American culture, contrasting the backwardness of its protagonist with the social ills afflict[ing] supposedly sophisticated society. The movie challenges its viewers to confront, not only the bizarre and offensive Borat character himself, but the equally bizarre and offensive reactions he elicits from ‘average’ Americans.”

Based on this reasoning, the court concluded that the plaintiff failed to state a claim under the New York statute because the movie fits the broad “newsworthy” exception. The court then swiftly disposed of plaintiff’s claims for unjust enrichment and quantum meruit, finding these claims subsumed under the New York privacy statute.