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Ninth Circuit affirms district court’s dismissal of Army sergeant’s lawsuit alleging that main character in film “The Hurt Locker” was based on his experiences without his consent, holding that film spoke to issues of public nature and was protected by First Amendment.

Army Sergeant Jeffrey Sarver sued the writer, director and producer of “The Hurt Locker,” along with several corporate defendants, asserting a number of state law claims, including misappropriation of his likeness and right of publicity. Sarver alleged that the film’s main character, Will James, was based on his life, that he did not consent to this use and that the film falsely portrayed him in a way that harmed his reputation. After defendants successfully moved to transfer the case from New Jersey to California, defendants moved to strike Sarver’s complaint under California’s anti-SLAPP statute. The district court dismissed all of Sarver’s claims, concluding that the anti-SLAPP statute applied because the defendants were engaged in the exercise of free speech in connection with a public issue, and that the film’s use of Sarver’s identity was transformative. Sarver appealed.

As a preliminary matter, the Ninth Circuit panel concluded that the district court properly applied California law instead of New Jersey law because California had the most significant relationship to the litigation, and that defendants’ anti-SLAPP motions were timely filed under Federal Rule of Civil Procedure 56.

The Ninth Circuit then assessed the merits of defendants’ motions by applying the anti-SLAPP statute’s two-prong analysis. First, the panel held that defendants had successfully shown that the film’s narrative of central character Will James spoke directly to issues of a public nature, namely the Iraq War and the use of improvised explosive devices by insurgents during the war. The panel then evaluated whether Sarver had successfully demonstrated a reasonable probability that he would prevail on his claim — and concluded that he had not. The Ninth Circuit found that “The Hurt Locker” was protected by the First Amendment, which safeguards storytellers who take the stories of real individuals and transform them into art. Because Sarver could not show a compelling state interest in preventing the defendants’ speech, applying California’s right of publicity law would violate the First Amendment. Because Sarver could not state a legally sufficient right of publicity claim, the district court properly granted defendants’ anti-SLAPP motion regarding that claim.

The Ninth Circuit also affirmed the district court’s dismissal of Sarver’s claims for false light, defamation, breach of contract, intentional infliction of emotional distress, fraud and constructive fraud/negligent misrepresentation, concluding that the film’s overall depiction of the Will James character was as a heroic figure, that this depiction would not offend a reasonable person and that no facts supported the notion that defendants’ use of Sarver’s identity and person was outrageous.