United States: Hurt Locker Decision Clarifies Differences In First Amendment Interests And Personal Interests Protected By The Right Of Publicity

9th Circuit affirms filmmakers' use of an individual's story in the film The Hurt Locker is protected by the First Amendment and does not violate alleged subject's right of publicity.

The Ninth Circuit affirmed the right of filmmakers and writers to use the story of Army Master Sgt. Jeffrey Sarver, an Army bomb disposal technician in Iraq, in the creation of the film The Hurt Locker. Sarver v. Chartier, 16 C.D.O.S. 1692 (9th Cir. 2016). Playboy magazine originally had published an article about Sarver, the author of which later wrote the screenplay for the award winning film. Sarver sued, contending that the film violated his right of publicity because the story of its main character, named Will James, was based on Sarver's life. The Ninth Circuit upheld the lower court's dismissal of Sarver's suit under the California anti-SLAPP law, holding that, even if the filmmakers had used aspects of Sarver's story in creating The Hurt Locker, their use was protected First Amendment speech that did not violate his right of publicity or other rights. The opinion attempts to set out a demarcation between First Amendment interests and personal interests protected by the right of publicity, but leaves open questions about its broader applicability.

Why did Sarver's right of publicity not prevail over the filmmakers' rights? The Court found that the filmmakers' First Amendment rights outweighed Sarver's right of publicity interests, reasoning "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...and transform them into art...." In particular, the film and its underlying written work examined the war in Iraq and the role of explosive device attacks, both of which were matters of public concern. The film did not appropriate the economic value of Sarver's persona or seek to capitalize on his celebrity image.

How did the Court differentiate Sarver from other right of publicity cases? This case differed from Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), which involved a network's broadcast of plaintiff's entire "human cannonball" act, and Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2009), which involved a greeting card featuring a catch phrase used by Paris Hilton, in two ways. Those defendants had potentially "appropriate[d] the economic value that the plaintiff[s] ha[d] built in an identity or performance." Here, in contrast, the filmmakers, to the extent they did use aspects of Sarver's personal story, created an artistic work about a matter of public concern. Second, Sarver did not "make the investment required to produce a performance of interest to the public" or "invest time and money to build up economic value in a marketable performance or identity." Instead, he "is a private person who lived his life and worked his job." The Court noted that Sarver has "expressly disavowed the notion that he sought to attract public attention to himself." In weighing the filmmakers' First Amendment rights against Sarver's potential right of publicity interests, the Court found the First Amendment interests prevailed: "The state has no interest in giving Sarver an economic incentive to live his life as he otherwise would."

The Court also distinguished this case from In re NCAA Student-Athlete Name & Licensing Litig., 724 F.3d 1268 (9th Cir. 2013) ("Keller"), and Davis v. Elec. Arts, 775 F.3d 1172 (9th Cir. 2015), both of which upheld the right of athletes (college athletes in one case and professionals in the other) to prevent their likenesses from being used in a videogame, emphasizing that the games sought to depict the players in the setting in which they had "received renown," thus interfering with their ability to capitalize on their success.

The Court also dismissed other more minor allegations by Sarver including a defamation claim, a false light invasion of privacy claim, and an intentional infliction of emotional distress claim, generally finding that, even if the depiction were of Sarver, it was compassionate, and not reasonably likely to expose him to offense, contempt or ridicule.

What does Sarver signal for other right of publicity cases? By itself, the Ninth Circuit's decision in Sarver v. Chartier may not signal a dramatic shift in the right of publicity landscape. The courts routinely have held that the First Amendment interests in protecting speech will outweigh an individual's right of publicity in the case of creative, expressive works. However, the allegedly clear lines the Sarver Court draws between situations where an individual has an interest in commercially exploiting his or her persona and when they do not, and where a particular work serves a primarily artistic and storytelling purpose and when it merely "proposes a commercial transaction," may be much more blurry than the decision suggests. Is it clear that an individual would never have an interest in commercially exploiting his life story simply because she had not yet done so? And what if the creative work involved were a videogame about the Iraq War and not a film? Courts repeatedly have affirmed that videogames are expressive works, protected by the First Amendment. Does a videogame "propose a commercial transaction" any more than does a film or a book? To what extent did the type of expressive work impact the Sarver Court's analysis? To what extent should it?

Moreover, the Sarver Court did not consider California's "transformative use" doctrine, which was at the heart of the Ninth Circuit's decisions in Hilton, Keller and Davis. Does the fact that The Hurt Locker was a fictional creative work impact how the courts should balance the interests protected by the right of publicity and those protected by the First Amendment?

What seems clear is that the Ninth Circuit is not inclined to permit an as-yet unexploited and hypothetical commercial interest of a private person to trump the speech rights of authors of highly-acclaimed expressive works involving matters of public interest. Whether this test is very predictive for the myriad cases which lie in the middle is much less certain. ​​​

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
20 Sep 2018, Other, California, United States

CoinAlts is designed to bring together the thought leaders in the cryptocurrency investment space to discuss the investment, legal and operational is​sues for cryptocurrencies as a new asset class.

25 Sep 2018, Conference, California, United States

We're excited to introduce Women's IP Strategy, a 2-day conference that tackles both the IP, legal as well as broader career development obstacles, risks and rewards for women lawyers working in male-dominant industries.

2 Oct 2018, Webinar, California, United States

This CLE webinar will offer suggestions to litigators to help them comply with the new GDPR during e-discovery.

Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions