IP Law Daily First Amendment barred soldier’s publicity rights suit againstThe Hurt Locker producers
Thursday, February 18, 2016

First Amendment barred soldier’s publicity rights suit againstThe Hurt Locker producers

By Peter Reap, J.D., LL.M.

Any claim that Army Sergeant Jeffrey Sarver had under California’s right of publicity law against the author and makers of the film The Hurt Locker (the “defendants”) was barred by the First Amendment because such a claim would be a purely content-based restriction of free speech and Sarver could not show a compelling state interest in preventing that speech, the U.S. Court of Appeals in San Francisco has decided (Sarver v. Chartier, February 17, 2016, O’Scannlain, D.). Therefore, the federal district court in Los Angeles’ dismissal of Sarver’s right of publicity claim, based on the defendants’ motion to strike under California’s Anti-Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute, was affirmed.

Sarver served as one of approximately 150 explosive ordnance disposal technicians during the war in Iraq. Journalist Mark Boal followed Sarver for a significant amount of time and took photographs and video of him while he was on and off duty. Boal wrote an article focused on Sarver’s life and experiences in Iraq, which was published, along with two photos of Sarver, in the August/September 2005 issue of Playboy.

Boal later wrote the screenplay for the film that became The Hurt Locker. Sarver contends that Will James, the movie’s main character, is based on his life and experiences. Sarver asserts that he did not consent to such use and that several scenes in the film falsely portray him in a way that has harmed his reputation.

Sarver filed suit against the defendants, alleging causes of action for misappropriation of his likeness and right of publicity, false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and negligent misrepresentation. the District of New Jersey transferred the case to the Central District of California.

The defendants moved to strike the complaint under California’s anti-SLAPP law, which was enacted to allow early dismissal of meritless First Amendment cases aimed at chilling expression through costly, time-consuming litigation. The district court concluded that California’s anti-SLAPP statute applied; the film’s use of Sarver’s identity was transformative; and dismissed all of Sarver’s claims. Sarver appealed.

Before reaching the merits, the appellate court first determined that California contacts predominated and that the district court correctly applied California law instead of New Jersey law. Having determined that California’s anti-SLAPP law applied, the appellate court considered whether the defendants’ anti-SLAPP motions—which were filed almost one year after Sarver filed his complaint—were timely.

Sarver contended that they were not, pointing to the anti-SLAPP law, which provides that an anti-SLAPP motion “may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” Sarver asserted that the defendants showed no good cause for their filing delay and that the district court therefore abused its discretion in accepting the anti-SLAPP motions so far beyond California’s 60-day time frame.

The appellate court concluded that, as it had found in Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001), the timing requirements set forth in the anti-SLAPP law fundamentally collide with federal courts’ rules of procedure. Thus, under federal procedural rules, the defendants’ anti-SLAPP motions were timely filed.

Turning to the merits, anti-SLAPP motions are evaluated in two steps, the court noted. The defendant must first “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 United States or California Constitution.” In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1272-73 (9th Cir. 2013). Second, if the defendant has made such showing, the court must evaluate whether the plaintiff has “establish[ed] a reasonable probability that the plaintiff will prevail on his or her … claim.”Id.

The defendants contended that the Iraq War was a matter of significant and sustained public attention, as was the use of improvised explosive devices by insurgents during the war. Accordingly, the defendants concluded that The Hurt Locker’s portrayal of those issues necessarily presented a matter of public concern. Sarver argued that, because he was not personally in the public’s eye before this film—the defendants could not satisfy the first step of the anti-SLAPP analysis.

Importantly, the film’s alleged portrayal of Sarver’s persona specifically centers around his work, the Ninth Circuit observed. Although the film allegedly incorporates personal characteristics of Sarver—for example his appearance, his temperament, and parts of his biography—such characteristics are displayed only in the context of the character’s experiences fighting in Iraq. This focus on the conduct of the Iraq War satisfied California’s standards for determining whether an issue is one of public concern, the court held.

Having satisfied the public interest inquiry, the court turned to the second step in the analysis, where the burden shifted to Sarver to state and substantiate a legally sufficient claim. California’s right of publicity law prohibits any other person from using a celebrity’s name, voice, signature, photograph, or likeness for commercial purposes without the celebrity’s consent. The elements of a claim of misappropriation of the right of publicity are (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. Even assuming that Sarver could establish all elements of his claim, the defendants contended that their production of the film was nevertheless protected under the First Amendment. Because that argument was dispositive, it was considered first, the court noted.

The First Amendment, applicable to the states through the Fourteenth Amendment, forbids laws “abridging the freedom of speech.” By its terms, California’s right of publicity law clearly restricts speech based upon its content. The Supreme Court has reviewed the constitutionality of a state’s right of publicity law only once, concluding that application of such a law to prevent the broadcast of a performer’s entire performance did not violate the First Amendment. In Zacchini v. Scripps-Howard Broadcasting Co., a journalist videotaped and broadcasted Zacchini’s entire 15-second “human cannonball” act. 433 U.S. 562, 563–64 (1977).

The Ninth Circuit has interpreted Zacchini to uphold the right of publicity in a variety of contexts where the defendant appropriates the economic value that the plaintiff has built in an identity or performance. In sum, Ninth Circuit precedents have held that speech which either appropriates the economic value of a performance or persona or seeks to capitalize off a celebrity’s image in commercial advertisements is unprotected by the First Amendment against a California right-of-publicity claim.

However, these cases did not apply here, the court reasoned. First, The Hurt Locker is not speech proposing a commercial transaction. Second, and critically, Sarver did not “make the investment required to produce a performance of interest to the public,” Zacchini, 433 U.S. at 576, or invest time and money to build up economic value in a marketable performance or identity, the court explained. 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.

In sum, The Hurt Locker is speech that is fully protected by the First Amendment, the Ninth Circuit determined. If California’s right of publicity law applies in this case, it is simply a content-based speech restriction. As such, it is presumptively unconstitutional, and could not stand unless Sarver could show a compelling state interest in preventing the defendants’ speech. Because Sarver could not do so, applying California’s right of publicity in this case would violate the First Amendment. Thus, the district court did not err in granting the defendants’ anti-SLAPP motions to dismiss the right of publicity claim.

Other claims. Sarver also contended that his claims for defamation, false light, and intentional infliction of emotional distress were improperly dismissed. The appellate court disagreed.

Even if Sarver was correct that certain aspects of Will James’s character are unflattering, it did not support the conclusion that the film’s overall depiction of James could reasonably be seen to defame Sarver and the film’s depiction certainly would not “highly offend” a reasonable person. Moreover, Sarver did not allege facts sufficient to show that any portrayal of him in The Hurt Locker was the result of “extreme” or “outrageous” conduct that induced severe or extreme emotional distress. Thus, Sarver’s false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and constructive fraud/negligent misrepresentation claims were properly dismissed.

The case is No. 11-56986.

Attorneys: Michael R. Dezsi (Law Office of Michael R. Dezsi PLLC) for Sgt. Jeffrey S. Sarver. Jon-Jamison Hill (Eisner, Kahan & Gorry) for Nicolas Chartier, Summit Entertainment, LLC, The Hurt Locker LLC; Voltage Pictures, LLC, Grovesnor Park Media, LP, Kingsgate Films Inc., and First Light Productions Inc.

Companies: Summit Entertainment, LLC; The Hurt Locker LLC; Voltage Pictures, LLC; Grovesnor Park Media, LP; Kingsgate Films Inc.; First Light Productions Inc.

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