It began with outrage in Kazakhstan, followed by the strangulated sound of forced laughter from the nation’s diplomats, who realised they should pretend to get the joke. It may end in a procession of costly trips to court. While Kazakhs have meekly come to an accommodation with the blockbusting power of Borat Sagdiyev, it appears that Sacha Baron Cohen’s altar ego did not learn one important lesson during his travels across the United States: when they are offended, Americans sue.
The ch-ching of box office cash registers for Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan has been matched by the wails of the offended and the murmur of American lawyers who believe that they, too, can make benefit from the movie. After the film was released, Cohen confirmed, as every cinema-goer had already realised, that of course the joke was not actually on Kazakhstan, but on those whom he had set up during the course of the film. Borat, he said, was a tool for exposing racism and anti-Semitism.
Indeed, the homophobic rodeo organiser and the boorishly drunk college kids whom Borat took advantage of may not elicit much sympathy in any bid to receive compensation. But that is not necessarily true of all his victims, and the putative law suits that have emerged so far have thrown new light on the extraordinary methods used by Cohen’s production company to fool members of the public (while, the company hoped, evading costly legal claims). In the case of the Romanian village persuaded to take the place of Borat’s Kazakh home in the film, the small sums of money allegedly paid — when compared to the amount of humiliation undergone — have led to accusations of exploitation.
Cohen’s sting was similar for most of his United States targets. The subject would be cold-called by representatives of a front company, usually called On America Productions. Linda Stein, for example, an artist and feminist baited by Borat in the film, had a pre-interview with a woman with the false name of Chelsea Barnard. Because the Kazakhstan angle would be familiar to those watching Ali G and Borat’s adventures on US cable channel HBO, Cohen’s people usually claimed to be working with a Belarus TV station.
Stein searched for One America on the internet and found nothing. Fearing it could be a cover for an extreme right group, she interrogated Barnard, who told her funding for the “documentary” came from Belarus Television. Cohen was shielded from Stein, and others, until the last minute, presumably to give people less time to see through his act.
The unwitting stars of Borat were offered modest sums, from $150 to $400 for their time. And, just as the crew were setting up the shoot, the victims would be handed consent or release forms, in complex legalese.
Media lawyers who have looked at the forms say they are unusually long, with some unique clauses. But the victims invariably signed them without even looking at them properly.
In one such form, published by Slate magazine, the project is described as “a documentary-style film” that the producer “hopes to reach a young adult audience using entertaining content and formats”. Clause four states that the participant waives the right to bring any claims against the producer. At first, its subclauses include standard terms such as “damages caused by ‘acts of God'”. Then they go further, demanding that the subject agrees not to bring any claims over “false light (such as any allegedly false or misleading portrayal of the Participant)” and “fraud (such as any alleged deception or surprise about the film or this consent agreement)”.
Stein admits she barely read the form but she questions its validity given that hers was signed by Chelsea Barnard — a made-up name. And, as she wrote in Manhattan’s Downtown Express, “While I’m no legal expert, I can’t believe that you can agree to be defrauded.”
Do these clauses protect Cohen and his producers from legal action?
At least one US entertainment lawyer believes the forms are watertight, however. “Generally, these releases will hold up in court unless the person suing can prove that he signed the agreement under false pretences or while incapacitated,” says Aaron Moss, an entertainment lawyer for Los Angeles-based Greenberg Glusker. “Even if a participant was lied to, a court may find that the person should have read the contract and that if he didn’t, it’s essentially his own fault.”
Nevertheless, etiquette coach Cindy Streit has asked California’s attorney general to investigate the film. She claims the company that approached her, “Springland Films”, put it in writing that the second of her two sessions with Borat would be “filmed as part of a documentary for Belarus Television and for those purposes only”. Twentieth Century Fox, the studio behind Borat, has dismissed this claim as “nonsense”.
Cohen is a brave man to take on probably the most litigious people in the world. But he might not have expected the Romanians to get in on the act.
On Monday a $30-million lawsuit was filed in Manhattan’s federal court on behalf of Nicolae Todorache and Spiridom Ciorebea, two residents of Glod, the Romanian hamlet where scenes in Borat’s “home town” were filmed. The men claimed they were told the movie was a documentary about extreme poverty in Romania that would accurately depict their lives. “Nothing could have been further from the truth,” the lawsuit says. “The project was intended to portray the plaintiffs … and other villagers as rapists, abortionists, prostitutes, thieves, racists, bigots, simpletons and/or boors.”
Nicolae Staicu, leader of the Roma in the area, accused the producers of paying locals just $3,30 to $5,50. But Gregg Brilliant, a spokesperson for Twentieth Century Fox, said locals were paid twice the going rate for extras, while the production team and Cohen each donated $5 000 to the village, paid a location fee and bought it computers and school supplies.
He insisted the movie “was never presented to anyone in Romania as a documentary”.
In turn, lawyers for the villagers argue that the producers deliberately exposed the victims to ridicule without allowing them a proper chance to give their consent. “This case is not about money but about dignity,” says lawyer Ed Fagan, who helped win victims of the Holocaust an out-of-court settlement of $1,25-billion after filing lawsuits against Swiss banks that had allegedly failed to repay money belonging to the victims. The Romanians’ legal team argues that, unlike participants in the US, they were not asked to sign any agreement or consent forms.
Cohen’s use of the people of Glod is more about morality and media ethics than law. Sherrell believes this negative publicity could increase the chances of Cohen’s backers pragmatically settling out of court: “If the stories are true, it appears that the villagers are impoverished and were treated very poorly. That casts the producers in a bad light. Picking on Romanian peasants for laughs isn’t great PR. But legally the issues are the same: did the villagers give consent and, if they did, was it meaningful and based on a proper understanding of the project?”
Can there be a happy ending for those who feel ridiculed or exploited? — Â