"The Hurt Locker" Subject Has No Right of Publicity Claim Against Movie Makers: Ninth Circuit | Practical Law

"The Hurt Locker" Subject Has No Right of Publicity Claim Against Movie Makers: Ninth Circuit | Practical Law

In Sarver v. Chartier, the US Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of Sarver's complaint alleging misappropriation of his right of publicity, among other claims, holding that the defendant's film was protected by the First Amendment.

"The Hurt Locker" Subject Has No Right of Publicity Claim Against Movie Makers: Ninth Circuit

by Practical Law Intellectual Property & Technology
Published on 22 Feb 2016 • USA (National/Federal)
In Sarver v. Chartier, the US Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of Sarver's complaint alleging misappropriation of his right of publicity, among other claims, holding that the defendant's film was protected by the First Amendment.
On February 17, 2016, in Sarver v. Chartier, the US Court of Appeals for the Ninth Circuit, affirmed the US District Court for the Central District of California's dismissal of Sarver's lawsuit against Chartier and other defendants, holding:
  • California's Anti-SLAPP (Strategic Lawsuits Against Public Participation) statute applied because Chartier was engaged in the exercise of free speech in connection with a public issue.
  • California's right of publicity statute protects against the misappropriation of a plaintiff's economic value in its identity. As a non-celebrity, Sarver did not have protectable economic value in his persona.
( (9th Cir. Feb. 17, 2016)).
In 2005, Army Sergeant Jeffrey Sarver was the subject of a Playboy magazine article about his service in the Iraq war, specifically handling improvised explosive devices (IEDs). The Playboy article ultimately served as the basis for the award-winning 2009 motion picture, The Hurt Locker.
In 2010, Sarver filed suit against The Hurt Locker producer Nicholas Chartier, director Kathryn Bigelow, and several others related to the movie's production and the original Playboy article (collectively Chartier). In particular, Sarver alleged 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.
Although Sarver filed suit in the US District Court for the District of New Jersey, Chartier successfully moved to transfer the case to the Central District of California. Once in California, Chartier filed a motion to strike Sarver's complaint under California's Anti-SLAPP statute. The district court ultimately dismissed Sarver's claims, holding:
  • The Anti-SLAPP statute, which was designed to discourage meritless cases brought for the sole purpose of chilling expression through costly, time-consuming litigation, applied in this case because Chartier was engaged in the exercise of free speech in connection with a public issue.
  • Even if Sarver and the character of Will James in The Hurt Locker shared similar physical characteristics and idiosyncrasies, enough original content was inserted into the work through the screenplay, production, and direction of the movie to make the work transformative.
Reviewing the district court's decision de novo, the Ninth Circuit focused first on the threshold matter of whether the Anti-SLAPP statute applied in this case. After determining that the choice-of-law rules of New Jersey allowed the court to apply California law because Sarver had failed to sufficiently show that New Jersey was the primary location of his injuries, the court then considered the Anti-SLAPP motion in two stages, analyzing:
  • Whether Chartier made a prima facie showing that the challenged claim is based on an act made in connection with a public issue in furtherance of his right to free speech under the US or California constitutions.
  • If Chartier made such a showing, whether Sarver had demonstrated a reasonable probability of succeeding on the merits of his claim.
Sarver argued that Chartier misappropriated his private persona, which was not of public interest. He relied on Dyer v. Childress, where the California Court of Appeal for the Second District held that although Reality Bites, the film at issue in that case, addressed broad public matters facing Generation X, there was no public interest in Dyer's persona which was the basis for the main character (147 Cal. App. 4th 1273 (Cal. Ct. App. 2007)).
However, the Ninth Circuit agreed with Chartier's arguments that the Iraq War and the use of IEDs in the war were matters of public attention. The court distinguished The Hurt Locker's portrayal of the Iraq War and the fictional character Will James from the depictions in Dyer, concluding that the private personal aspects that Sarver claimed the movie misappropriated specifically centered on the IED work, which spoke to issues of a public nature.
Finding that Chartier satisfied the first step in the anti-SLAPP analysis, the court next considered whether Sarver had stated a legally sufficient claim. However, before reaching Sarver's claims, the court determined Chartier's film was protected by the First Amendment, reasoning as follows:
  • The US Supreme Court last reviewed the constitutionality of a state's right of publicity law as balanced against the First Amendment in 1977, in Zacchini v. Scripps-Howard Broadcasting Co., where a journalist broadcast the entirety of the plaintiff's 15-second "human cannonball" act (433 U.S. 562 (1977)). Because Ohio's right of publicity laws provided Zacchini with an economic incentive to develop a performance of public interest, the First Amendment could not be used to prevent Ohio from protecting Zacchini's right of publicity.
  • The Ninth Circuit has interpreted Zacchini to uphold right of publicity laws in various contexts where a defendant has appropriated the economic value that the plaintiff has built in an identity or performance. Most recently, the court has upheld actions by college football players challenging the use of their likeness in video games, finding that use interferes with their ability to capitalize on their athletic success. (See Keller v. Elec. Arts, Inc., 724 F.3d 1268 (9th Cir. 2013) and Davis v. Elec. Arts, Inc., 775 F.3d 1172 (9th Cir. 2015).)
  • Speech is not protected by the First Amendment against California right of publicity claims if it either:
    • appropriates the economic value of a performance or persona; or
    • seeks to capitalize on a celebrity's image in a commercial advertisement.
The court then held these precedents did not apply to Sarver because:
  • The film The Hurt Locker is not speech proposing a commercial transaction.
  • Sarver:
    • did not make the investment required to produce a performance of interest to the public; and
    • made it clear that he is a private person who has not sought public attention.
Accordingly, the state has no interest in giving Sarver an economic incentive to live his life as he otherwise would and the court cannot hold that Sarver has a compelling state interest in preventing Chartier's right to free speech.
Because Sarver cannot show a prima facie case of right of publicity misappropriation and a likelihood to succeed on the merits, the Ninth Circuit concluded the district court did not err in granting Chartier's anti-SLAPP motion.
The court also affirmed the district court's dismissal of Sarver's other claims.