Ninth Circuit Shoots Down Right of Publicity Lawsuit Involving Academy Award Juggernaut The Hurt Locker
As we kick off “Oscar Week” here at TheTMCA.com, it is particularly apropos to discuss a decision just handed down by the Ninth Circuit Court of Appeals involving the critically acclaimed movie, The Hurt Locker. It is a powerful film about a team of U.S. soldiers in the Iraq War that were responsible for identifying and disposing of improvised explosive devices. The movie swept up six Oscars at the 82nd Academy Awards in 2010, including Best Picture and Best Director. Like many successful films, The Hurt Locker also spawned litigation. Enter Sergeant Jeffrey Sarver. He sued a small armada of defendants including those involved in the writing, production, and distribution of the film. Sgt. Sarver claimed The Hurt Locker violated his right of publicity, defamed him, portrayed him in a false light, and intentionally inflicted emotional distress. Sarver was unsuccessful before the trial court, and there was no reprieve at the 9th Circuit. Here’s the back story on what happened and why.
In December 2004, Playboy magazine reporter Mark Boal was embedded with Sgt. Sarver’s 788th Ordnance Company out of Baghdad, Iraq. Boal followed Sgt. Sarver for a significant amount of time, taking photos and videos of the harrowing adventures experienced by Sarver and his team. When Boal came home, he wrote an article about Sarver that appeared in Playboy followed by a condensed version that appeared in Reader’s Digest. Boal then wrote the screenplay for The Hurt Locker, which delivered quite a payload with the movie critics. Sgt. Sarver contended that Will James—the main character in the movie—was based on Sarver’s life and experiences. Sarver also challenged several scenes in the film that allegedly defamed him and portrayed him in a false light.
The trial court dismissed the suit finding that it was barred by California’s anti-SLAPP statute, which is designed to discourage suits that masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so. The 9th Circuit affirmed.
The 9th Circuit found that Sarver could not state a plausible claim for violation of the right of publicity for two principal reasons. First, The Court examined prior right of publicity cases and found that a common thread that all of the defendants in those cases were peddling goods or services using the person’s name, image, or likeness. According to the Court, even assuming Sgt. Saver’s name, image, or likeness was used, The Hurt Locker “was not proposing a commercial transaction.” Instead, the Oscar darling constituted “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.”
Second, and “more critically,” Sarver had not made “the investment required to produce a performance of interest to the public” nor had he “invested time and money to build up economic value in a marketable performance or identity.” Instead, the Court had this to say about him:
…Sarver is a private person who lived his life and worked his job. Indeed, while Sarver’s life and story may have proven to be of public interest, Sarver has expressly disavowed the notion that he sought to attract public attention to himself. Neither the journalist who initially told Sarver’s story nor the movie that brought the story to life stole Sarver’s “entire act” or otherwise exploited the economic value of any performance or persona he had worked to develop. The state has no interest in giving Sarver an economic incentive to live his life as he otherwise would.
As a result, the right of publicity claim failed, as did the remaining state law causes of action.
So, does the Court’s decision mean that any “non famous” person is fair game for a feature film? Not exactly. The Court’s reasoning hinged, in part, on the fact that the movie only focused (if at all) on a sliver of Sarver’s life while he was in the Iraq War–an issue of tremendous importance and interest to the public. Moreover, and more importantly, there were no facts to suggest that Sarver had previously packaged his Iraq War experience in a way to obtain economic benefit from it being told. The Hurt Locker simply did not cause Sgt. Sarver any economic damage.