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. ???