Sarver v. Chartier, 813 F.3d 891 (9th Cir. Feb. 17, 2016)
The Ninth Circuit recently affirmed a ruling by the Central District of California, No. 2:10-cv-09034-JHN-JCx, 2011 WL 11574477 (C.D. Cal. Oct. 13, 2011), that the First Amendment barred a right of publicity suit brought by an individual who alleged that he was portrayed, without his permission, in the film The Hurt Locker.
According to the plaintiff, Jeffrey Sarver, he was interviewed in 2004 by journalist Mark Boal while Boal was reporting on Sarver’s Explosive Ordinance Disposal (“EOD”) team in Baghdad. Boal later wrote the screenplay that became the film The Hurt Locker. Sarver subsequently sued Boal, the film’s director Kathryn Bigelow, and the producer Nicholas Chartier, among others, for violating his right of publicity, false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and negligent misrepresentation. After the case was transferred from New Jersey to the Central District of California, the defendants moved to strike the complaint based on California’s anti-SLAPP (strategic lawsuit against public participation) statute, which was enacted to facilitate early dismissal of meritless suits aimed at chilling speech. The district court struck the complaint in its entirety, and Sarver appealed. Sarver v. Chartier, 813 F.3d 891, 897 (9th Cir. 2016).
The Ninth Circuit upheld the district court’s ruling. After determining that California, not New Jersey, law applied and that the defendants had timely brought their anti-SLAPP motion, the court evaluated Sarver’s right of publicity claim, which it appeared to consider Sarver’s strongest cause of action. It laid out the two prongs to an anti-SLAPP suit: (1) the plaintiff’s suit arose 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 U.S. or California constitution; and (2) if the defendant has made such a showing, whether the plaintiff is likely to prevail on her claim. Id. at 901.
Concerning the first prong, the Ninth Circuit found that Sarver’s lawsuit involved an issue of public concern, namely, the Iraq War and the use of improvised explosive devices (“IEDs”) during the war. Id. at 902. Sarver argued that the question was not whether the Iraq War was an issue of public concern, but rather whether his private persona was of public interest. He maintained that his private persona was not of public interest prior to the film because he had not been in the public eye. Id. The Ninth Circuit rejected that argument. It reasoned that Sarver’s work while in Iraq was an issue of public concern, and the portrayal of Sarver’s personal characteristics was merely incidental to depicting his work, as the two are necessarily entwined. Id.
Concerning the second prong, the Ninth Circuit found that even if Sarver could establish all of the elements of his right of publicity claim, it would be barred by the First Amendment. In so finding, the court distinguished Zacchini v. Scripps, a Supreme Court case upholding California’s right of publicity law. There, a journalist videotaped and broadcast plaintiff Zacchini’s entire 15-second “human cannonball” act. Zacchini sued, alleging a violation of his right of publicity. The Court balanced Zacchini’s interest in earning a living from his performance against the defendant journalist’s interest in broadcasting the entire performance (as opposed to Zacchini’s name or photograph), and found in favor of Zacchini. Id. at 904.
According to the Ninth Circuit, Zacchini has been interpreted as upholding the constitutionality of right of publicity laws against First Amendment challenges where the defendant appropriates the economic value that the plaintiff has built in an identity or performance. The Ninth Circuit reasoned that in Sarver’s case, in contrast to Zacchini, the state has no interest in giving Sarver an economic incentive to live his life as he otherwise would. Id. at 905. “In sum,” the court found, “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.” In other words, the court concluded that to the extent Sarver could make out a right of publicity claim, it would be barred by the First Amendment as a content-based restriction on speech. Id. at 905-06.
Finally, the Ninth Circuit rejected Sarver’s claims for defamation and false light because it found that the film portrayed him as a hero, not in a negative light. Id. at 906-07. It also rejected his claim for intentional infliction of emotional distress, as simply portraying him accurately in a film (as his complaint alleged the defendants did) did not amount to “extreme” or “outrageous” conduct. Id. at 907.
This outcome is surprising in that it appears to provide less privacy protection for private individuals than for those who intentionally place themselves in the public eye. It may provide some comfort to creators who use the raw materials of real life to create their historically-based works, but should not be viewed as giving carte blanche to portray real people inaccurately or in wholly fictional works.