Ninth Circuit Finds No Publicity Claim In <i>Hurt Locker</i>

The Iraq war, “its dangers, and soldiers' experiences were subjects of longstanding public attention,” Ninth Circuit Judge Diarmuid O'Scannlain wrote for a unanimous panel in Sarver . “Indeed, The Hurt Locker, with its unique focus on IED disposal teams, contributed to that attention. That the film won several Oscars and reached widespread audiences only buttresses our conclusion. The film and the narrative of its central character Will James speak directly to issues of a public nature.”

That distinguished Sarver's suit from misappropriation cases brought by Paris Hilton over the use of her image on greeting cards and by rebellious GenXer Troy Dyer over how he was depicted in the film Reality Bites . Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2009); Dyer v. Childress, 147 Cal. App. 4th 1273 (Cal. Ct. App. 2007).

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,” Judge O'Scannlain wrote. Circuit Judges Richard Paez and Sandra Ikuta concurred.

The Ninth Circuit's decision affirms a 2012 judgment of Jacqueline Nguyen, then a Central District of California federal judge. The Ninth Circuit had put the appeal on hold while it decided that former NFL players have a right to control their likenesses in video games. Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015). Meanwhile, the Eleventh Circuit recently made headlines when it ruled that Target could sell plaques featuring the likeness of civil rights hero Rosa Parks. Rosa and Raymond Parks Institute for Self-Development v. Target Corp., 15-10880 (9th Cir. 2016).

In Sarver, 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 sued in New Jersey, but the case was transferred to California where the defendants invoked the latter state's anti-SLAPP statute, Cal. Civ. Code '425.16. 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. Judge Nguyen had issued a tentative ruling allowing the case to proceed but then changed her mind ' evidence, Dezsi argued, that Sarver had a legitimate claim.

Judge 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,” the circuit judge 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 of the anti-SLAPP statute ' establishing a legally sufficient claim ' it was doubtful Sarver had a right of publicity claim under California law, Judge O'Scannlain wrote. ” The Hurt Locker is not speech proposing a commercial transaction. Accordingly, our precedents relying on the lesser protection afforded to commercial speech are inapposite.”

Unlike Paris Hilton, Sarver was not a celebrity who invested time and money to develop a marketable persona. (In Hilton, the Ninth Circuit decided Hilton could proceed with a right of publicity claim over Hallmark's use of her image along with the catch phrase “that's hot” from her TV show.) “Rather,” the circuit court noted, “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.”

But even if he could make out a publicity claim, it would collide with the defendants' constitutional rights, Judge O'Scannlain concluded, noting: ” 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.”

The winning argument in Sarver 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.

Scott Graham is an Appellate Reporter with The Recorder, the San Francisco-based ALM sibling of Entertainment Law & Finance.