How The Hurt Locker Case Put Life Rights in the Spotlight

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  • June 06, 2018
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In March of 2010, Master Sgt. Jeffrey S. Sarver sued the makers of the film The Hurt Locker, alleging the movie was based on his life without his consent, thus misappropriating his likeness, infringing his rights of publicity, and cheating him out of participating in the film’s financial success. In response, the filmmakers filed an anti-SLAPP motion in California district court asserting that Sarver’s lawsuit constituted an impingement of free speech, and they succeeded.

(Sarver also made several other claims, such as defamation, breach of contract, and fraud, but, here, we are looking at the life rights issues related to the alleged misappropriation of a person’s identity and experiences.)

In February of 2016, the lower court’s decision was upheld by the Ninth Circuit Court of Appeals, concluding that “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…”

California’s Anti-SLAPP Law

California’s anti-SLAPP law—SLAPP stands for Strategic Lawsuit Against Public Participation—provides for a special motion to strike a complaint where the complaint arises from activity exercising the rights of petition and free speech. The purpose of the law is to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation.

Anti-SLAPP motions are evaluated in two steps:

1. The defendant must make a threshold showing that the act or acts of which the plaintiff complains were in furtherance of the right of petition or free speech, and in connection with a public issue.

2. The plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.

Facts Set Forth in the Original Lawsuit

Sarver served as a bomb disposal technician in Iraq while Mark Boal, a journalist (and one of the defendants), traveled with Sarver’s unit, documenting their daily activities. When Sarver returned to the United States, Boal conducted additional interviews with him, all culminating in a 2005 Playboy Magazine article focused entirely on Sarver’s life and experience in the Iraq war. Boal went on to write the screenplay for The Hurt Locker with the character “Will James” at its center. In his lawsuit, Sarver alleged Will James is based on him and his personal story without his consent.

Applying the Anti-SLAPP Requirements to the Facts

Regarding Anti-SLAPP requirement #1, movies are protected speech, and that point was not argued by Sarver. As far as the act being connected to a public issue, the court found that an individual’s service in the Iraq war, especially the dangerous type of work Sarver did, is of public interest, regardless of whether the information portrayed was used with or without permission.

Turning to Anti-SLAPP requirement #2, the court found Sarver failed to make a prima facie showing of facts that would support judgment in his favor. (Prima facie means the facts provided are accepted as true until proven otherwise.) To establish a right of publicity claim, an individual must allege:

1. The defendant’s use of the plaintiff’s identity
2. The appropriation of the plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise
3. Lack of consent
4. Resulting injury

The court noted that “the rationale for protecting the right of publicity is to prevent unjust enrichment by the theft of good will.” However, the filmmakers argued that even if Sarver could show a probability of prevailing on the elements of a right of publicity claim, the First Amendment bars his claim based on the “transformative use” defense to right of publicity claims. Borrowed from copyright law—specifically the first fair use factor of the fair use defense—the transformative use defense “requires the court to examine and compare the allegedly expressive work with the images of the plaintiff to discern if the defendant’s work contributes significantly distinctive and expressive content…” If distinctions exist, the work is transformative.

Here, the court found that, even if the character of Will James was based on Sarver, the film was transformative in that “a significant amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie.”

Effect of the Ruling on Life Rights & the Freedom of Film Studios to Create Stories based on Real People

The subsequent Court of Appeals ruling, wholly agreeing with the lower court and endorsing the filmmakers’ free speech rights, is potentially a big boon for filmmakers and television producers who find inspiration—or see profit—in real life source material. Where once an individual may have been compensated for the use of his or her life story, film and TV studios may no longer see the need. And anyone asked to “share their story” must secure their rights (and compensation) contractually before they do so, because, as The Hurt Locker case teaches, loose lips make movies.

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