## Facts

- One America Productions, Inc. and other affiliated film companies produced and distributed *Borat*, a feature film portraying a fictional Kazakh journalist traveling through the United States and interacting with real people who allegedly were unaware the premise was fictional.
- A scene in *Borat* was filmed at a Pentecostal camp meeting in Clarksdale, Mississippi.
- Ellen Johnston attended the meeting and appeared in the movie for approximately three seconds during the scene in which congregants pray for Borat’s “conversion.”
- After the film’s release, Johnston sued in the U.S. District Court for the Northern District of Mississippi on diversity jurisdiction grounds.
- Johnston alleged she was filmed and shown in the movie without her permission and without signing a release.
- She asserted Mississippi invasion-of-privacy claims, including (1) misappropriation of likeness (unpermitted use for defendants’ commercial benefit) and (2) false light (the film allegedly implied she knowingly participated in material ridiculing her religion).
- Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

## Issues

1. Whether Johnston stated a Mississippi misappropriation-of-likeness claim based on a brief, non-identifying appearance as one of many congregants in an expressive motion picture.
2. Whether Johnston stated a Mississippi false-light invasion-of-privacy claim where the film showed her praying in a manner consistent with her faith, but she alleged the film’s broader context made her appear to be participating in religious mockery.

## Decision

- The court granted defendants’ Rule 12(b)(6) motion as to misappropriation, concluding the complaint did not plausibly allege that defendants used Johnston’s identity for a commercial advantage in the sense required by Mississippi’s appropriation tort (as opposed to an incidental depiction within a crowd scene in a film).
- The court granted the motion as to false light, concluding the complaint did not plausibly allege a false and highly offensive portrayal of Johnston; the scene depicted her praying over Borat and did not attribute to her beliefs or conduct inconsistent with her own.
- The court dismissed the complaint with prejudice and entered judgment for defendants.

## Legal Principles

- Mississippi recognizes an invasion-of-privacy claim for appropriation of name or likeness when a defendant uses the plaintiff’s identity for the defendant’s advantage, typically in a commercial sense; incidental use in a broader expressive work, without exploitation of the plaintiff as an individual, is not enough.
- To plead false light under Mississippi law, a plaintiff must allege (1) publicity placing the plaintiff before the public in a false light, (2) that would be highly offensive to a reasonable person, and (3) the defendant acted with knowledge of falsity or reckless disregard for the truth.
- A complaint must allege facts that make the asserted tort elements plausible; conclusory allegations that a portrayal is “false” or “mocking,” without facts showing what is false about the depiction of the plaintiff, are subject to dismissal under Rule 12(b)(6).
- When the challenged use occurs within an expressive work (such as a film) rather than in advertising or an endorsement, courts are less likely to treat the use as an actionable appropriation absent allegations that the plaintiff’s identity was used as a selling point.

## Conclusion

In *Johnston v. One America Production, Inc.*, the federal district court dismissed with prejudice a Pentecostal camp-meeting attendee’s Mississippi invasion-of-privacy suit arising from a three-second appearance in *Borat*, holding that her brief inclusion in a crowd scene did not plausibly allege commercial appropriation of her identity and that the film’s depiction of her praying did not plausibly place her in a false, highly offensive light.


Johnston v. One America Production, Inc., 2007 WL 2433927 (2007)