Psenicska v. Twentieth Century Fox Film Corp.

2008 WL 4185752 (S.D.N.Y. 2008)

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Nature of the Case

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Facts

Borat was released in theaters in 2006. Each P appeared in the Movie as a real person who immigrated to the US and whom the movie lambasted. Psenicska (P) has owned a driving school for 32 years, where he personally administers driving lessons. P was contacted by D who informed him that Defendant One America was producing a 'documentary about the integration of foreign people into the American way of life.' P was interested in participating in the Movie and agreed to meet the production crew in Washington, D.C. for filming on June 13, 2005. D and the production crew arrived 90 minutes late with $ 500 in cash for P, as well as papers 'needed by the producers for the documentary.' P was unaware that he would be asked to sign something and, consequently, failed to bring his reading glasses. Nevertheless, P signed the document, entitled the Standard Consent Agreement ('the Agreement'), without reading it. P was then shown to a driver-education car and instructed to follow a production van through a driving course. The ensuing events involved Cohen (D), as Borat, driving irresponsibly and erratically while engaging in conversations with strangers and making derogatory and offensive remarks about sexual intercourse, Jews, women, and African-Americans. Once taping ended, P approached a group of men he believed were producers of the Movie and accused them of setting him up, but elicited no response. P attempted to contact D to determine the intent of the film but again received no response and subsequently commenced his action on December 3, 2007. The pattern of late show up, lies to get the parties to participate and must sign the Agreement immediately repeated itself with each plaintiff signing the Agreement. The Agreement set forth each P's consent to appear in a 'documentary-style . . . motion picture.' Each Agreement states that the relevant P: specifically, but without limitation, waives, and agrees not to bring at any time in the future, any claims against the Producer, or against any of its assignees or licensees or anyone associated with the Film, that include assertions of (a) infringement of rights or publicity or misappropriation (such as any allegedly improper or unauthorized use of the Participant's name or likeness or image), . . . (d) intrusion (such as any allegedly offensive behavior or questioning or any invasion of privacy), . . . (m) prima facie tort, . . . [and] (n) fraud (such as any alleged deception or surprise about the Film or this consent agreement). Each Agreement includes a merger clause which notes, among other things, that 'the Participant acknowledges that in entering into [the Agreement], the Participant is not relying upon any promises or statements made by anyone about the nature of the Film or the identity of any other Participants or persons involved in the Film.' Ps sued and Ds moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.