The producers of “The Hurt Locker” had a First Amendment right to fictionalize the experience of a U.S. Army explosives technician in the Iraq war, the U.S. Court of Appeals for the Ninth Circuit ruled Wednesday.
The decision ends a right-of-publicity and defamation action brought by Sgt. Jeffrey Sarver against the Oscar-winning film’s producer, director and screenwriter, plus various corporate defendants.
The Iraq war, “its dangers, and soldiers’ experiences were subjects of longstanding public attention,” Judge Diarmuid O’Scannlain wrote for a unanimous panel in Sarver v. Chartier. “The film and the narrative of its central character Will James speak directly to issues of a public nature.”
That distinguished it from misappropriation cases brought by Paris Hilton over the use of her image on greeting cards and by rebellious GenXer Troy Dyer over his depiction in the film “Reality Bites.” Although Sarver was not in the public eye before the film, “the nature of Sarver’s occupation and the context in which his alleged portrayal appears in The Hurt Locker set him apart from Dyer,” O’Scannlain wrote for a unanimous panel.
Judges Richard Paez and Sandra Ikuta concurred. The decision affirms a 2012 judgment of Jacqueline Nguyen, then a district court judge and now a Ninth Circuit jurist who’s been mentioned in recent days as a potential Supreme Court short-lister.
The right of publicity is a rapidly developing area of law. The Ninth Circuit had put the appeal on hold while it decided whether college students have a right to control their likenesses in video games. And the Eleventh Circuit just made headlines last month when it ruled that Target could sell plaques featuring the likeness of civil rights hero Rosa Parks.
The stakes were high for the entertainment industry. The Motion Picture Association of America argued as amicus curiae that from the dawn of the movie industry filmmakers have drawn on actual events and people, whether for documentaries, historical drama, or fictional stories based on real events.
Sarver led one of three teams in the 788th Ordnance Company tasked with identifying and disposing of improvised explosive devices. A journalist working for Playboy magazine, Mark Boal, was embedded with Sarver’s unit and spent about a month following him around, shooting photos and video of him, and later interviewing him at his home in Wisconsin, according to Wednesday’s opinion.
Sarver objected that he had not consented to the use of his name and likeness in the subsequent Playboy article—or the screenplay that Boal created for The Hurt Locker. Director Kathryn Bigelow and producer Nicholas Chartier framed the movie around a character named Will James whose appearance, temperament and experiences in Iraq allegedly track Sarver’s.
Sarver sued in New Jersey, but the case was transferred to California where the defendants invoked the anti-SLAPP statute.
Sarver’s attorney, Michael Dezsi of the Law Office of Michael R. Dezsi, argued to the Ninth Circuit that the anti-SLAPP law is designed to weed out trivial cases. Nguyen had issued a tentative ruling allowing the case to proceed but then changed her mind, Dezsi told the court—as further evidence that Sarver has a legitimate claim.
O’Scannlain wrote that the movie producers met the first prong of the anti-SLAPP statute—that the conduct depicted in the movie was a matter of public concern.
Even if the movie borrows from Sarver’s biography and mannerisms, they “are displayed only in the context of the character’s experiences fighting in Iraq,” O’Scannlain wrote. “In other words, the private aspects that Sarver alleges the film misappropriated are inherently entwined with the film’s alleged portrayal of his participation in the Iraq War.”
As for the second prong—establishing a legally sufficient claim—it is doubtful Sarver has a publicity claim under California law, O’Scannlain wrote. Unlike Paris Hilton, Sarver is not a celebrity who invested time and money to develop a marketable persona. But even if he could make out a publicity claim, it would collide with the Constitution, O’Scannlain concluded.
“The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art, be it articles, books, movies, or plays,” he wrote.
The winning argument was shared by three attorneys: Jon-Jamison Hill of Eisner, Kahan & Gorry, who represented producer Chartier; David Halberstadter of Katten Muchin & Rosenman, who repped production company Summit Entertainment LLC; and Jeremiah Reynolds of Kinsella Weitzman Iser Kump & Aldisert, who represented director Bigelow.
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