Storytellers and Artists Rejoice: The Hurt Locker Is Fully Protected By The First Amendment

Sergeant Jeffrey Sarver, who served as an actual EOD technician in Iraq during parts of 2004 and 2005, says that James’ character in The Hurt Locker was based on his life and experiences, but that he did not consent to such use and. The film’s screenwriter – Mark Boal – actually spent time with Sarver’s EOD unit in December 2004, during which he followed Sarver for a significant amount of time and took photographs and video of him while he was on and off duty.

In March 2010, Sarver sued the makers of The Hurt Locker for various claims, including right of publicity. A number of defendants moved to strike Sarver’s complaint under California’s Strategic Lawsuit Against Public Participation (anti-SLAPP) statute, California Code of Civil Procedure § 425.16. The district court granted their motion, and struck Sarver’s complaint. Sarver appealed and, on February 17, 2016, the Ninth Circuit upheld the district court’s dismissal.

The panel applied California’s two-step analysis for anti-SLAPP motions:

• First, the defendant must make a prima facie showing that the plaintiff’s suit arises from an act by the defendant made in connection with a public issue in furtherance of the defendant’s right to free speech under the U.S. or California Constitutions. Put differently, the defendant must first show that the act or acts about which the plaintiff complains were taken in furtherance of the defendant’s right of petition or free speech.
• Second, if the defendant makes such a showing, the court evaluates whether the plaintiff has established a reasonable probability that he will prevail on his claim. Here, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.

On the first prong, the Ninth Circuit noted that California courts had identified three categories of public issues: statements concerning a person or entity in the public eye; conduct that could directly affect a large number of people beyond the direct participants; and a topic of widespread, public interest. Relying on Dyer v. Childress, 55 Cal.Rptr.3d 544 (2007), Sarver argued that the alleged misappropriation of his private persona is not a matter of public interest. Indeed, in Dyer, the California Court of Appeal held that a depiction of a private person in a famous movie was not a matter of public interest. Here, however, the Ninth Circuit rejected the Dyer argument, and explained that Sarver’s occupation and the context in which his portrayal appeared in the movie was, in fact, a matter of public interest. In particular, the Court explained that “the private aspects [of] Sarver are inherently intertwined with [The Hurt Locker’s] alleged portrayal of his participation in the Iraq War,” which war was certainly a matter of significant public interest. “That war, its dangers, and the soldiers’ experiences were subjects of longstanding public attention.” Indeed, “[t]he film and the narrative of its central character [the allegedly misappropriated identity of Sarver] spoke directly to issues of a public nature.” As such, prong one was satisfied.

Turning to the second prong, the burden shifted to Sarver to state and substantiate a legally sufficient claim. The elements of a claim for misappropriation of the right of publicity are: (1) the defendant’s use of the plaintiff’s identity, (2) the appropriation of the plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise, (3) lack of consent and (4) resulting injury. Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001).

The Ninth Circuit determined that, even assuming Sarver could establish all the elements of his right of publicity claim, the claim was nevertheless barred the First Amendment. In other words, the panel determined that allowing Sarver to pursue his right of publicity claim would infringe the defendants’ constitutional right to free speech. Notably, the Court decided not to address the transformative use defense, and instead focused solely on the defendants’ First Amendment defense.

With respect to the First Amendment defense, the Court explained that it does not protect against a California right-of-publicity claim where the defendant has either (1) appropriated the economic value of a performance or persona or (2) sought to capitalize off a celebrity’s image in commercial advertisements.

Having set forth the test, the Court held that the First Amendment defense did indeed preclude the claims against the filmmakers here. The Court explained that Sarver had made no investment (time or money) to build up any economic value in a marketable identity. Put differently, the defendants did not exploit the “economic value” of any persona that Sarver had worked to develop. Merely living your life and working your job is not sufficient, the Court explained.

Second, The Hurt Locker is not speech proposing a commercial transaction.

As such, the defendants’ movie was fully protected by the First Amendment, which means that applying California’s right of publicity law to the movie would be unconstitutional as a matter of law. The Ninth Circuit upheld the dismissal of Sarver’s right of publicity claim.

The Ninth Circuit’s decision is a good one for filmmakers. In a published opinion, the Ninth Circuit reiterated that the First Amendment provides a powerful defense for entertainment works. The Court expressly stated that the First Amendment “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, or plays.”

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