Commentary: Fox survived 'Borat' blitzkrieg; now it's Uni's turn on front lines with 'Bruno'
EmptyHow do you say "deja vu" in German?
In October 2006, when Universal paid $42.5 million in a bidding war for the right to release Sacha Baron Cohen's mockumentary "Bruno," the ambush comedian's "Borat" hadn't even hit theaters. At the time, Baron Cohen mostly was making headlines for the lawsuits filed against him and "Borat" producers by "victims" who felt they'd been duped into appearing in a movie that made them look dumber than the Kazakh journalist himself.
"Wow," a rival studio lawyer said to me upon seeing that Universal was hopping into bed with Baron Cohen. "If I'm in Universal's legal affairs department, I just got very nervous."
Flash forward 30 months: "Borat" opened huge and grossed more than $260 million worldwide, and Fox, which released the film, successfully beat back the lawsuits, even winning its attorneys fees from a man who appeared in the film wearing a confederate cap and sued over the bold suggestion he might be racist.
The Fox victories made Universal's bet seem wise, at least from a legal perspective. But as "Bruno" heads to theaters July 10, Universal finds itself in a familiar yet unwelcome position, defending a lawsuit over tactics allegedly used to make a film that relies largely on creating conflicts with its subjects.
Richelle Olson's complaint reads like something a creative law school professor would concoct for a final exam. She operated a charity bingo game near Palmdale, Calif., and claims that Baron Cohen and crew showed up in character, created an unruly disturbance, grabbed her and roughed her up to the point that she became overwhelmed, adjourned to another room, fell, suffered a "brain bleed" and now is confined to a wheelchair.
On the surface, the case appears to be simply an odd personal-injury claim -- serious, of course, but with fewer implications for the business than when the "Borat" subjects began objecting to appearing onscreen in an international blockbuster. However, even though people who have seen "Bruno" say Olson doesn't get any screen time, by including NBC Universal as a defendant she raises a relevant question never addressed in the "Borat" litigation: When can a studio be held responsible when people are injured by the cast or crew making a movie?
The answer, as with most interesting legal questions, isn't clear, at least not to the law professors I polled. If Olson's story is true -- far from certain, given the timing of a lawsuit over an incident that supposedly happened two years ago -- the key for her would be to show she actually was injured and that Universal should have foreseen that something like this could occur during shooting. That means figuring out the extent of the studio's involvement in overseeing production, the control executives had over the shoot, whether Baron Cohen and crew were acting as instructed, etc. Given how much Baron Cohen's comedy depends on his ability to shock -- and, let's face it, humiliate people in some cases -- the studio paying him hardly could be said to be totally removed from the process.
"If he has people supporting and funding his behavior and misrepresentations, liability is imputed to them," argues Kyle Madison, a lawyer representing Olson and her husband.
Maybe, maybe not. Universal isn't commenting publicly, beyond a statement saying that taped footage proves the assault never took place, but there are at least a few possible layers of protection between the alleged incident and the studio. That 2006 bidding war gave Universal the right to buy the film from producer Media Rights Capital, meaning the studio probably was less involved in the production than on, say, "Public Enemies." And, given Baron Cohen's legal entanglements last time around, it would be shocking if those nervous studio lawyers didn't insert stronger language than the typical paragraphs absconding liability for bad behavior on the set. Plus, Olson signed a release, the same form that helped Fox and Baron Cohen win the "Borat" cases.
"If you believe the agreements your clients signed will not be enforced, you are mistaken," production lawyer Russell Smith wrote in a June 5 letter to Olson's lawyers. "The agreements contain virtually the same language as the agreements in the various 'Borat' litigations, in which courts from California to Alabama to New York have enforced those same contractual provisions in the face of claims not as weak as the bogus allegations of your clients."
Baron Cohen now has embroiled two studios into embarrassing legal fracases. What's he got for an encore? On his development slate is "Accidentes," a Fox project in which he would play -- wait for it -- a personal-injury lawyer.