Lowering the Bar

Alabama Dinner Party Participants are Latest to Sue Borat

Another lawsuit stemming from the movie "Borat" was filed on Friday, October 22, this time in the Northern District of Alabama by the other "stars" of the dinner party scene.

In Streit v. Twentieth Century Fox, the plaintiffs allege that the defendants conspired to mislead them about the nature of the film that was being made.  Allegedly, Todd Schulman of Springland Films met with plaintiff Cindy Streit, who operates an etiquette training business, and told her that they were filming a documentary for Belarus Television.  According to the complaint, "Streit asked Schulman whether Belarus Television was similar to Alabama Public Television and he replied that it was very similar."  Apparently reassured by this, Streit arranged for a dinner party that would be filmed for the education of the people of Belarus.

Instead, "[d]uring the dinner later that evening, Defendant [Sacha Baron] Cohen performed numerous offensive and outrageous acts" with which plaintiffs have subsequently been repeatedly associated.

The complaint does not name an amount of damages, but notes that "Borat" has earned over $220 million worldwide, compared to a production budget of only $18 million.  It also seeks an injunction against the use of plaintiffs' images or any part of the "dinner scene" in the "Borat" movie itself or in any future endeavor.

Link: The Smoking Gun

UPDATE: Underwear-Throwing Not Motive in Opera Cancellation

A few corrections to my report a while back on the lawsuit involving opera singer Dame Kiri Te Kanawa and Australian pop singer John Farnham.  The coverage I saw claimed that Dame Kiri had backed out of a joint-concert deal because of her horror at discovering that women tended to throw underwear at Mr. Farnham during his performances.  Looking at the opinion, however (and thanks to the contributor who sent me a copy), shows that there was more to the story.

The opinion details lengthy negotiations over the concert deal, which I am sparing you.  These went on for months.  Then, the first sign of trouble:

On 7 November 2003 Mr Grace [Dame Kiri's manager] sent an email to Mr Williams [Farnham's manager] advising that he . . . had spoken to her about “Australia 2005.”  It is apparent that Mr Williams had obtained a photograph of Dame Kiri on a Harley Davidson motorbike and had discussed with Mr Grace the use of such an image in promotional material.

One does not often see a photograph that depicts an opera star and Dame of the British Empire straddling a Harley Davidson motorbike.  Nor will one's eyes alight upon such a photograph anytime soon, as Dame Kiri unsurprisingly nixed it.

A few weeks later, the knickers issue arose:

Dame Kiri gave evidence that . . .  she viewed the DVD of one of Mr Farnham’s performances and . . .  observed that women’s lingerie was thrown on to the stage and Mr Farnham collected it and held it during the performance, she thought, as some sort of “trophy.”  Dame Kiri claimed that she found that “embarrassing” and “disrespectful” to her . . . . Dame Kiri then [a month later] telephoned Mr Williams . . . . [She] claimed that the following conversation took place:

Dame Kiri:  Frank, this is Kiri. I’m very concerned. I’ve watched the DVDs of John Farnham. They’re absolutely horrendous. Undies were being thrown at him . . . .

The deal ultimately fell through, of course.  But the judge found that the real reason was not the undies but rather Dame Kiri's irritation that Farnham had missed a meeting with her.  (She did not believe his excuse that he was reluctant to fly in a "light aircraft during severe electrical storms" in order to make the meeting.)  Ultimately, most of the claims were dismissed, but plaintiff did recover some cash from defendant's management company.

With hindsight, it's a little surprising that it took a year and a half for everyone to realize these two would not be a great team.

Link: Leading Edge Events v. Kiri Te Kanawa

Florida Governor Is "Seriously Thinking" Of Pardoning Jim Morrison

According to the International Herald Tribune, Florida Governor Charlie Crist said today that he is "seriously thinking" of granting a posthumous pardon to Doors singer Jim Morrison.  (This is a major step forward since my report on this last week.)  Morrison was convicted in 1970 of indecent exposure and profanity stemming from a concert in Miami in 1969.  Morrison's appeal was still pending when he died, at the age of 27.

"That's really a kid," said the governor, "and obviously he was having some challenges."  In particular, he was having some challenges keeping his pants on, but at the age of 27, who didn't?  More importantly, Crist continued, "[t]here's some dispute about how solid the case was."  That's the point that Kerry Humpherys, who publishes Doors Collectors Magazine, and Dave Diamond, who has written for DCM, have been making for years.  As I reported last week, Diamond wrote a letter to Governor Crist last month (the most recent of several such letters), in which he pointed out the lack of evidence that Morrison had actually exposed himself, and that New York Governor George Pataki similarly pardoned Lenny Bruce (also posthumously) for an obscenity charge.

Governor Crist expressed admiration for Morrison's work.  "I can remember when I was 10 years old listening to the song, 'Come On Baby Light My Fire' [i.e., 'Light My Fire'].  Classic.  Classic.  And to have that much talent and to have it sucked out [by drugs], even if there was some self-involvement . . . that's very sad and very tragic."  He seemed sincerely sympathetic to the cause.  "Trying to clear his name and then he dies . . . . If you have a heart pounding in your chest, that has to tug at you a little bit.  It should."

"Lowering the Bar" readers, virtually all of whom do have hearts pounding in their chests -- and some of whom really should have that looked at -- also have been generally sympathetic.  Almost eighty percent of readers are currently supporting the Morrison pardon.  Morrison's father, a retired admiral, is reportedly very happy at the prospect of a pardon, and keyboardist Ray Manzarek (who, the IHT reported, "never saw Morrison expose himself") was said to be "elated."  "Wouldn't it be great," he said, "if Florida could finally say, 'Hey, native son, your name is cleared.  We recognize you as a young American poet.'"

Governor Crist said that his legal team was reviewing the case and considering procedure, but he did not say how long the review might take.

Link: International Herald Tribune

"Girls Gone Wild" Founder Says Judge Has Gone Wild in Suit Filed by Girls Who Had Previously Gone Wild

Multimillionaire and professional creep Joe Francis, who earns an estimated $29 million a year from his series of "Girls Gone Wild" videos, in which your daughters appear partially naked during spring break, was ordered to jail this week after a federal judge held him in contempt.  Francis, who has been sued by seven girls who allegedly went wild while they were minors, was held in contempt last week after the judge found he failed to participate in settlement negotiations in good faith.  Or at least that's what I interpret "shouting obscenities and threatening the women" to mean.

U.S. District Judge Richard Smoak had ordered Francis to jail on Saturday but suspended that order when attorneys reported that a settlement agreement had been reached.  But they reported this week that Francis had unilaterally changed the conditions of the agreement, which is often frowned upon by other parties to an agreement.  That led Judge Smoak to find Francis re-contemptible and to issue a warrant for his arrest, saying he had been "snookered."  "He may have snookered us and gotten out Saturday," said the judge, "but he's coming back."  (Snookering any federal employee now carries severe penalties as a result of the amended Patriot Act.)

Francis went wild at the news, saying it was a case of "a judge gone wild."  He did not say whether he planned to release any "Judges Gone Wild" videos (let's hope not), but he did defy the judge's order, saying he would not turn himself in voluntarily to U.S. marshals.  That should lead to a standoff that will last for between 3-5 seconds.  Attorneys for Francis have appealed the contempt order, an appeal that will probably last about as long as the standoff, but Judge Smoak has already denied their request to stay enforcement of the order pending appeal.

If you want to learn more about "Girls Gone Wild," you'll have to do some research since most news outlets do not say much more about it than I did above, for the same reasons -- observing some minimal standards of decency and morality.  The exception: FOX News, which was the only website of those I read that featured the cover of a "Girls Gone Wild" DVD in the story.

Link: ABC News
Link: USA Today
Link: FOX News

Bay City Rollers Reunite for Lawsuit

The Wall Street Journal's excellent law blog reported this week that the members of the 1970s band "The Bay City Rollers" have filed a lawsuit in the Southern District of New York seeking royalties from their label, Arista Records.

Those of you who were alive at the time may remember roller-skating, or possibly even driving, to the sounds of the band's 1975 hit, "Saturday Night," the one with the chorus that went "S-A!  T-U-R!  D-A-Y! -- Night!" repeated many, many times in order to emphasize and clarify to the listener that only that particular day of the week, and indeed only the nighttime portion of the 24-hour period in question, was being lauded.  The song, which truly captured all the pain and angst of an America torn apart by Vietnam and Watergate, reached #1 in the U.S., the first song of 1976 to do so.  (That was its only week at #1.  It was replaced the next week by "Convoy.")

In the complaint, we learn (in a section titled "The Advent of Rollermania") that the plaintiffs "(collectively the 'Bay City Rollers,' 'Rollers' or 'BCR,')" were a Scottish band founded in 1967 as "The Saxons," which is an odd name for Scots to choose, and not surprisingly they soon decided to seek "a less English-sounding name."  Two darts thrown at a map later (the first one apparently landed in Arkansas), the "Bay City Rollers" were born.  They had a number of UK hits in the early 1970s after which, at least according to paragraph 22, "[C]omparisons of their popularity to the Beatles' earlier popularity were not uncommon." 

Statements like that one are not uncommon in the complaint, as you might expect.  Somewhat more surprising are the allegations that the band remains popular today.  "In Japan," paragraph 25 claims, "their success has been and remains phenomenal."  (Emphasis added.)  In the last ten years, according to the complaint, Arista Records has released no fewer than thirty-four separate BCR compilations, pretty remarkable for a band that had six singles total make it to the US top 40 charts.  The most recent BCR compilation was Absolute Rollers -- The Very Best of [BCR], which was released on January 30, 2007, an event that seems to have escaped wide public notice.

The lawsuit, released on March 20, has gotten more publicity.  It claims that BCR is owed tens of millions in unpaid royalties, and that the band was only paid $250,000 by Arista for all its efforts.  BCR is represented in the lawsuit by the firm of Holland and Knight.  An attorney reached for comment by the WSJ said he really likes their music.

Link: WSJ Law Blog (also links to PDF of complaint)
Link: Wikipedia: Bay City Rollers
Link: Wikipedia: Billboard Top 100 hits of 1976

Opera Singer Successful in Lawsuit by Underwear Collector

New Zealand opera star Dame Kiri Te Kanawa, who is sufficiently famous that even I have heard of her, won a lawsuit this week that had been filed against her by an Australian rock singer, John Farnham.  Arrangements had been made for the two to perform together in a series of concerts, which is odd enough to begin with, but Dame Kiri pulled out of the deal in 2005 after watching a DVD of one of Farnham's prior performances and noting that female fans tended to throw their underwear at Farnham.

Dame Kiri said she was embarrassed by the panty-throwing and was concerned that this would occur at their joint performances.  This would be "disrespectful" to her, she said.  One is not to doff one's undergarments in the presence of a Dame, let alone to project said undergarments in a public manner.  Also, Farnham has apparently stated that he keeps the underwear thrown at him, and Dame Kiri said she found it offensive that Farnham collects the items as "some sort of trophy."

The promoter of the planned concerts sued for breach of contract, but Judge Patricia Bergin ruled on Wednesday that the promoter had not proven its case.  The article did not report whether the offending DVD was part of the court record, or whether any opera fans threw their underpants at Judge Bergin after the ruling.

Link: Reuters via Yahoo! News

Borat Defeats Frat-Guy Defamation Lawsuit

Superior Court Judge Joseph Biderman ruled today that he would not enjoin the movie "Borat" in a lawsuit by two South Carolina fraternity brothers who were shown in embarrassing circumstances.  The two claimed they were duped into appearing in the movie after the producers got them drunk and falsely promised that the "documentary" would not be shown in the United States.

Since the movie itself will not be in theaters too much longer, the arguments as to injunctive relief focused on harm that might occur from the future DVD release, which will allow viewers to repeatedly watch the two men say (among other things) that it's too bad slavery was abolished.  Judge Biderman denied the motion for an injunction despite the plaintiffs' argument that the movie had cost one of them "a job at a major corporation" and another "a prestigious internship."  Apparently Judge Biderman found those claims unlikely.

Link: Reuters.com

Court of Appeal Hears Case of The Taster's Choice Guy's Face

Yesterday I argued an appeal in California's Court of Appeal for the Second District, which covers Los Angeles, and I was just getting ready to leave after the argument when they called the next case, Christoff v. Nestle USA. That stopped me in my tracks because I recognized that case from one of my previous reports.  Here's what I wrote about it in February 2005:

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How to Turn a $250 Job Into $15.6 Million

Sue in L.A. County, that's how. In the latest (relatively) monstrous verdict from that jurisdiction, an L.A. jury awarded Russell Christoff $15.6 million dollars for the unauthorized use of his face on Taster's Choice jars for seven years. Christoff had been paid $250 for a photo shoot in 1986 but did not know Nestle had actually used his likeness until he saw himself on a jar in a drug store in 2002. "I looked at it and said, 'expletive, that's me!'" he recalled.

I hope he really does go around saying, "expletive!" but I bet he doesn't.

Lawyers for Nestle claimed that a Canadian employee of the company had unknowingly pulled the photo, thinking they had consent to use it, and that Nestle USA had brought it back to the States in 1997. The amount of damages was likely the only issue in the case. Christoff was paid $250 and was promised $2000 if the image were used in Canada, as it eventually was. The company offered him $100,000 to settle, to which he countered with $8.5 million. The jury's $15.6 million verdict apparently represents 5 percent of Nestle's entire profits from Taster's Choice while Christoff's face was on the jars, which certainly seems like a reasonable valuation to me.

Oddly, Nestle's lawyers said the company plans to appeal.

AP via SFGate.com

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Nestle did appeal, and I would like to thank the Court for scheduling the oral argument to coincide with my case. "Expletive, that's the case I wrote about!" I said to myself. I stayed to take careful notes (on my own time, of course). Mr. Christoff and his whole family were there in the courtroom, so it promised to be entertaining.

I was wrong that the amount of damages was the only issue in the case. It was an issue, certainly, but the main issue on appeal was whether the statute of limitations barred Christoff's claim even though there was no evidence he had any idea that his face was being used. (He had moved to Canada by the time he unknowingly became the Taster's Choice Guy for millions of Americans.) I think the argument was that the "single-publication rule" that applies in defamation cases would have barred Christoff's claim, but to be honest I was paying closer attention to trying to figure out which guy in the audience was Christoff, and more importantly which of the female heirs to the $15.6 million Taster's-Choice-Guy fortune might be single.

The Christoff extended family group was easy to pick out. Most of them were female, and of the men one was too old, one was too young, and the two in the back were way too ugly. That left just one guy, who did turn out to be Christoff as I later confirmed by digging up the picture below.

As you can see, Christoff now looks something like the guy who played J. Peterman on "Seinfeld," but back when he was looking for coffee-jar modeling jobs he looked something like a cross between Mandy Patinkin and Ricardo Montalban. The perfect man to become the new "Taster," as the company apparently refers to whoever is on their label. It seems that Nestle argued in part that Christoff was not entitled to damages (or only to a smaller amount) because it had really not used his own personal image, but rather had incorporated his face into what it called the "icon" of the Taster's Choice Taster.  ("Taster" doesn't seem accurate if only because the guy on the label is not in fact tasting, just gazing sensually at the coffee in the cup that he has been denied for so long, but is hoping, even longing, to taste sometime very, very soon. But I guess they have to call him something.) Justice Cooper wanted to know why Christoff should be entitled to all of the profits earned during the time his face was used, as opposed to whatever profits might have been attributable to the use of his own face. Presumably, that would be a much smaller amount, although Justice Cooper pointed out (several times) that she did of course think The Taster was a very attractive man.

Frankly, the debate over the single-publication rule in this context, while probably very important especially in Los Angeles, was less interesting to me than the various examples of celebrity-likeness cases or hypothetical cases that everybody kept mentioning.  I kept a list of celebrities mentioned:

• Bela Lugosi
• Arnold Schwarzenneger
• Lance Armstrong
• Ronald Reagan
• Walt Disney
• Aunt Jemima
• "a KISS band member" (unidentified)

The most comical thing I learned from the argument was that not only did Nestle use Christoff's face without express permission on millions of coffee jars in the U.S., they also apparently used it in other countries, and actually tinkered with his appearance to make it more palatable.  According to Justice Cooper, when they used his image in Mexico "they made it darker and gave him sideburns."

Link: AP via SFGate.com (coverage of the verdict in 2005)