United States: First Amendment SLAPPs Publicity Right Plaintiff In "Hurt Locker" Case

On February 17, 2016, the Ninth Circuit affirmed the dismissal by the Central District of California under the California anti-SLAPP statute of a publicity rights claim against the motion picture "The Hurt Locker." The plaintiff, Army Sergeant Jeffrey Sarver, an explosive ordnance disposal technician in Iraq, claimed the film appropriated his life story. Sarver v. Chartier, Ninth Circuit, Case No. 11-56986 decided February 17, 2016.

The motion picture "The Hurt Locker" tells the story of fictional Army Sergeant First Class William James, portrayed by Jeremy Renner, as he leads a team of specialists protecting lives by disarming explosive devices during the Iraq War. The critically acclaimed film, released in 2009, won six Academy Awards, including, Best Picture, Best Director (Kathryn Bigelow, the first and only female director to win this award) and Best Original Screenplay (Mark Boal).  Boal based the screenplay on his personal coverage of the Iraq War where he observed Sgt. Sarver and later interviewed him back in the States.  Sarver asserted that Boal, without authorization, published a factual account about Sarver in Playboy magazine then later fictionalized the story in the film.

California's anti-SLAPP ("Strategic Lawsuit Against Public Policy") statute was enacted to allow early dismissal of meritless actions which might otherwise inhibit the exercise of First Amendment rights through costly and time-consuming litigation. The statute authorizes dismissal where the defendant demonstrates the complained of actions are in furtherance of protected First Amendment activity, thus shifting the burden to the plaintiff to demonstrate a probability of success on the merits.

The Ninth Circuit had no difficulty in finding that the motion picture was an expressive work about a matter of public interest entitled to the highest level of First Amendment protection. This was in contrast to commercial speech where an individual's publicity rights may more readily prevail.  The Court, as examples of less protected commercial speech, cited Paris Hilton's claim against Hallmark's use of her image and catch phrase "that's hot" on greeting cards (Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2009) ("merely merchandising a celebrity's image"), Keller v. Electronic Arts, Inc., 724 F.3d 1268 (9th Cir. 2013) and Davis v. Electronic Arts, Inc., 775 F.3d 1172 (9th Cir. 2015)(football players interpolated into video games) and Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998)(Dodger's pitcher Don Newcombe's image in a printed beer ad).)  In dismissing, the Ninth Circuit found the filmmakers had met their burden, but that the plaintiff had not shown a probability of success on the merits.

The decision should provide substantial comfort to filmmakers telling stories based upon or "inspired by" real-life events whether such films portray the real persons by name or fictionalize the story for dramatic purposes. However, the Ninth Circuit's opinion is somewhat more nuanced and deserves a closer reading for its other aspects that may give guidance on how such claims may be litigated in the future.

One of the potentially more important, but easily overlooked, aspects of the case is its choice of law dimension. Sarver initially brought the case in New Jersey with the defendants successfully removing it to California, likely because New Jersey does not have a SLAPP statute.  That, however, did not end the inquiry, since the Ninth Circuit then needed to determine whether New Jersey law, without SLAPP, still applied.  Although federal courts in a diversity suit would normally apply the choice of law rules of the forum state, the rule is different where the case is transferred.  In that instance, the transferor court's conflicts rules apply.  Thus applying New Jersey conflicts principles, the Ninth Circuit ultimately found that the state with the most "significant relationship" to the claim was California since much of the conduct and most of the parties were centered in California and, likely very significantly, because Sarver could not convincingly demonstrate his domicile was New Jersey where he was merely posted by the Army when the film was released.  The Court also held that New Jersey's interest in not applying SLAPP principles did not outweigh California's interest in preserving them since certain New Jersey courts had already suggested that SLAPP suits required heightened judicial sensitivity to First Amendment concerns.  In other words, filmmakers facing publicity and privacy rights claims will likely face a friendlier forum in California than in those jurisdictions which have less protective SLAPP statutes or possibly no SLAPP at all.

Hurt Locker is also notable for a judicially rare, but highly instructive discussion of the Supreme Court's publicity rights holding in the "Human Cannonball" case, Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).  Scripps-Howard, as part of its news reporting, recorded and broadcast Zacchini's entire 15-second performance of being shot from a cannon, thus depriving him of a valuable commercial property right.  The Supreme Court held that the First Amendment interest in broadcasting the entire performance was minimal since it would have otherwise prevented Zacchini from charging an admission fee for what the public had already enjoyed for free.  The Ninth Circuit explained it would apply Zacchini to protect the economic value a plaintiff had built in an identity or performance, such as in the Paris Hilton case.  However, such precedent did not save Sarver who did not "make the investment required to produce a performance of interest to the public" (quoting Zacchini).  Intriguingly, the fact that Sarver had expressly avoided the public eye, actually made his publicity rights claim less viable. The Court stated, "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."  While a privacy claim could have still been viable, it would appear as though Sarver's voluntary interview with the screenwriter Boal, coupled with his publicly documented military exploits, would have limited the scope of any such privacy claim since the film deals almost entirely with Sarver's public actions in Iraq with only incidental references to his private life at home.

The Ninth Circuit concludes with a passage likely to be often quoted: "In sum, 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 transforms them into art, be it articles, books, movies, or plays."

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
19 Oct 2017, Webinar, Los Angeles, United States

Please join Oliver Wyman and Sheppard Mullin for an upcoming webinar to discuss the critical topic of pharmacy value. "Driving Value in Pharmacy: How the Industry Can and Must Deliver Change" will highlight where the industry can and must evolve to bring needed relief to consumers and improve health.

19 Oct 2017, Webinar, Los Angeles, United States

Stay tuned on the latest developments in Europe that may affect your business and join Sheppard Mullin’s Antitrust & Competition “Breakfast with Europe” drive-time webinars, bringing you up to speed on what you need to know about the month back, the present and month forward in European competition law developments.

24 Oct 2017, Seminar, Los Angeles, United States

Presented by The American Bar Association White Collar Crime Committee.

 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.