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How to Make a Movie Ridiculing a Person (and avoid getting sued)

Last weekend I watched Borat, a film with funny moments, but has way too much crude humor.

One thing that crossed my mind: why didn’t anyone win their lawsuits about Sascha Cohen for invasion of privacy?

Of course, the Borat people made these people sign release statements. (Here is a copy of the actual release made by the film company). But Cohen certainly misrepresented the nature of the film and how these individuals would be portrayed in the film.

Daniel Engbar writes in Slate magazine:

What about the Borat movie? Participants were asked to sign a "STANDARD CONSENT AGREEMENT" prepared by "One America Productions Inc." The document describes a "documentary-style film" designed "to reach a young adult audience by using entertaining content and formats."

The agreement goes on to release the production company from a list of 16 potential claims. The waivers encompass claims of defamation, invasion of privacy, and infringement of publicity rights—and they do so in unusual detail. The document diverges most clearly from the standard "standard consent agreements" when it gets into issues of fraud, "breach of alleged moral rights," and copyright infringement. There’s even a reference to the federal Lanham Act, which covers unfair business practices that could mislead consumers. (This clause may protect against the claim that consumers were made to believe that the participant has endorsed—or voluntarily acted—in the film.)

Let me say this: I’m all for artistic expression, but don’t just sign a release until you have received adequate information about the film. For all you know, this could be the KKK or Nazis producing this film. (I once signed my life away for a documentary about global warming while on vacation in Boston. I didn’t worry about it too much, but in retrospect, I should have signed the release only after being interviewed. Alternatively, I should have kept the signed release in my hand until the shoot was over. This case was slightly different because I wasn’t actually being paid. In the case of Borat, many participants  were hired to provide some kind of service; but for many of these kinds of films, you are not being paid anything.

In some of the funniest scenes, Borat was bothering people on the subway. I think Cohen did his act, and then later the cameraman circulated releases to subway passengers. One unspoken thing is that Cohen and crew must have had good diplomatic skills in persuading people not to get too crazy afterwards.

Also: Jody Rosen analyzes the vaudevillean traditions of the Borat song “Throw the Jew Down the Well.”  (see the Youtube video. Interestingly, this song was in the cinema version, but nowhere to be found on the US DVD).

The cultural dynamics of Sacha Baron Cohen’s song and Irving Berlin’s "Cohen Owes Me 97 Dollars" (1915) are vastly different—the difference is 90 years of Jewish history. "Cohen" and its ilk were assimilationist anthems: The Jews who embraced caricatures of blundering greenhorns were asserting their sophistication, laughing at the comic hebe to prove that they had passed out of their own awkward greenhorn phase. The songs were love letters to the New World, designed to cleanse all who got the joke of the Old World taint. A decade after "Cohen Owes Me 97 Dollars," Berlin and a new generation of Jewish tunesmiths had moved on to crafting elegant love songs for all-American crooners. (Berlin, of course, would become the specialist in post-ethnic musical Americana: "God Bless America," "Easter Parade," "White Christmas.") The next time Jewish dialect music surfaced in the pop mainstream was on Broadway, when a new generation began to sentimentalize, of all things, the deprivations and piety of the Pale of Settlement. What was the Fiddler on the Roof score if not a collection of "Hebrew" dialect tunes?

Viewed against this backdrop, "Throw the Jew Down the Well" looks like nothing less than the angriest and most extraordinary piece of Jewish-themed music that has ever bubbled to the surface of American popular culture. It’s a dialect song sung not in the voice of the greenhorn, or the assimilated Jewish-American smoothie, or the saintly shtetl-dweller, but by the Old World tormentor. And, Borat’s performance of the song insists, in the face of nearly a century of Jewish pop-cultural passing and ventriloquism, that the Jews never did assimilate after all, that the lynch mob is waiting just over the hill—or downing brews beneath Stetsons at the local watering hole—waiting to "grab him by his horns" and hurl him down. It’s classic Jewish paranoia, of the kind voiced darkly in the privacy of Jewish homes, and in the lyrics of another famous novelty song, Tom Lehrer’s "National Brotherhood Week" (1965): "Oh, the Protestants hate the Catholics/ And the Catholics hate the Protestants/ And the Hindus hate the Moslems/ And everybody hates the Jews." You want to dismiss it out of hand, but Borat’s song isn’t just a comedy number—it’s an exposé. Watch those bar patrons singing along and you can’t help but wonder: In my country is there problem?

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