USDC S.D. New York, September 3, 2008

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The plaintiffs’ claims in this consolidated action arose from the motion picture BORAT – Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan. The plaintiffs sought damages for the use of their images in the motion picture, and the defendants moved to dismiss each complaint for failure to state a claim. The court granted the defendants’ motion to dismiss.

In connection with the movie, each of the plaintiffs had executed a “Standard Consent Agreement” for use of their image in a “documentary-style . . . motion picture.” Each agreement included a merger clause, which noted, 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 other Participants or persons involved in the Film.”

The plaintiffs claimed that the release was invalid because the film was not a “documentary-style . . . motion picture.” The court concluded, however, that each plaintiff had executed a valid agreement releasing his/her claims. The court reasoned that whether a contract is unambiguous is a threshold question of law to be determined by the court and suitable for disposition on a motion to dismiss. The court then rejected the plaintiffs’ argument that the term “documentary-style film” does not describe the movie and, therefore, that they had not waived any right to bring claims against the defendants relating to the movie. The court concluded that the term “documentary-style film” is not ambiguous and “means a work displaying the characteristics of a film that provides a factual record or report,” and that there can be no real debate that the movie fits this definition. “The fact that Borat is a fictional character, however, does nothing to diminish the fact that his fictional story is told in the style of a true one.” Accordingly, the court concluded that the agreement is not ambiguous and could be enforced at that stage of the litigation.

Similarly, the court dismissed plaintiffs' fraudulent inducement claims on the basis of the merger clause contained in the agreement. The court rejected the plaintiffs’ argument that the agreement’s merger clause is too general to preclude his or her defense of fraud in the inducement, because a plaintiff cannot claim to have relied on a statement upon which he or she has explicitly disclaimed reliance. The court found that the defendants did not have a duty to disclose the nature of the film and the identities of those involved in the film, as such a duty would allow the plaintiffs to avoid the clear wording of their own contracts, which is contrary to well-settled New York law.