by Michael Donaldson
From Cannes to Hollywood, Sacha Baron Cohen is back in the news this week as his latest mash-up of humor and political commentary makes it way into theaters, courtesy of The Dictator. If the moviemaker learned anything from Borat, it just may be that sweeping a number of unsuspecting “actors” into your film without their permission can turn into a very big headache.
After the release of Borat, 27 claims were filed against the Hollywood funnyman that eventually resulted in 10 lawsuits. All but one of these suits were dismissed or defeated, while the remaining one resulted in a small settlement. How did the story turn out so well for Borat when you consider the hundreds of folks who never signed a release at all and the dozens who did sign a release but wish they had thought twice?
First off, it’s always a good idea to get a release when making a movie. If you don’t already have one, a good starting point is a release that has been tested in court. The Borat release has emerged unscathed from multiple attacks in the courts of our country. So just what did the release say?
This is an agreement between One America Productions, Inc (the “Producer”) and the undersigned participant (the “Participant”). In exchange for the Producer’s obligation to pay a participation fee in the amount of $________ (receipt of which is acknowledged by the Participant) and the opportunity for the Participant to appear in a motion picture, the Participant agrees as follows:
1. The Participant agrees to be filmed and audiotaped by the Producer for a documentary-style film (the “Film”). It is understood that the Producer hopes to reach a young adult audience by using entertaining content and formats.
2. The Participant agrees that any rights that the Participant may have in the Film or the Participant’s contribution to the Film are hereby assigned to the Producer, and that the Producer shall be exclusively entitled to use, or to assign or license to others the right to use, the Film and any recorded material that includes the Participant without restriction in any media throughout the universe in perpetuity and without liability to the Participant, and the Participant hereby grants any consents requited for those purposes. The Participant also agrees to allow the Producer, and any of its assignees or licensees, to use the Participant’s contribution, photograph, film footage, and biographical material in connection not only with the Film, but also in any advertising, marketing, or publicity for the Film and in connection with any ancillary products associated with the Film.
3. The Participant understands that the Producer and its assignees or licensees are relying upon this consent agreement in spending time, money and effort on the Film and the Participant’s participation in it, and that the consent agreement, for this and other reasons, shall be irrevocable.
4. The Participant specifically, but without limitation, waives, and agrees not to bring at any time in the future, any claims against the Producer, or against any if its assignees or licensees or anyone associated with the Film, that include assertions of (a) infringement of rights of publicity or misappropriation (such as any allegedly improper or unauthorized use of the Participant’s name or likeness or image), (b), damages caused by “acts of God” (such as, but not limited to, injuries from natural disasters), (c) damages caused by acts of terrorism or war, (d) intrusion (such as any allegedly offensive behavior or questioning or any invasion of privacy), (e) false light (such as any allegedly false or misleading portrayal of the Participant), (f) infliction of emotional distress (whether allegedly intentional or negligent, (g) trespass (to property or person), (h) breach of any alleged contract (whether the alleged contract is verbal or in writing), (i) allegedly deceptive business or trade practices, (j)copyright or trademark infringement, (k) defamation (such as any allegedly false statements made on the Film) (l) violations of Sections 43(a) of the Lanham Act (such as allegedly false of misleading statements or suggestions about the Participant in relation to the Film or the Film in relation to the Participant), (m) prima facie tort (such as any alleged intentional harm to the Participant), (n) fraud (such as any alleged deception or surprise about the Film or this consent agreement), (o) breach of alleged moral rights, or (p) tortuous or wrongful interference with any contracts or business of the Participant.
5. This is the entire agreement between the Participant and the Producer or anyone else in relation to the Film, and the Participant acknowledges that in entering into it, 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.
6. Although the Participant agrees not to bring any claim in connection with the film or its production, if any claim nevertheless is made, the Participant agrees that any such claim must be brought before, and adjudicated by, only a competent court located in the State of New York and County of New York, under the laws of the State of New York.
City, State, Zip: ______________________________________________________________
Truthfully, it is the best form of release that I have seen. Why? First of all, it is written in plain English from top to bottom. But let’s look at it more closely. Here are the most important features:
1. The description of the project is specific and crafted for this particular project including the intended audience. Too often this is not the case. When the description is not specific folks can honestly say: “I didn’t know what I was getting in for.” Here is what the description of Borat that was in the release: “a documentary-style film… the Producer hopes to reach a young adult audience by using entertaining content and formats.”
2. Overall it is very simple.
3. The list of torts that are being waived is very broad and very specific.
4. The right to sue is waived.
5. There is a paragraph that specifically says that the person signing is NOT relying on anything that is not in the release. These are called integration paragraphs and can be filled with legalese. This one is understandable.
The Borat release will give you more protection than just about any release that I have seen. However, no piece of paper can keep someone from coming after you if he or she is unhappy with how they appear in your film. Borat proves that.
Michael C. Donaldson (http://donaldsoncallif.com) is an entertainment attorney who has been fighting for independent filmmakers for over 30 years. He serves as General Counsel to Film Independent and the Writers Guild Foundation, and is the industry’s go-to attorney for fair use and other clearance- and rights-related issues. He’s worked on such projects as “This Film is Not Yet Rated” (where all 134 clips were utilized under fair use), “Wanderlust” (saving its filmmaker over $400,000) and “Expelled” (which featured the song “Imagine,” prompting an unsuccessful law suit by Yoko Ono). His book Clearance and Copyright is currently used in over 50 film schools and has become the standard industry reference book.