In August 2015, the film Straight Outta Compton was released.  It’s a biopic about the struggles of several young African American males who formed the musical group “N.W.A.” back in the 1980s.  A key player in the film is N.W.A.’s manager, Jerry Heller, who managed the group through tumultuous times.  Heller is portrayed as a “bad guy” in the film who was allegedly responsible for bungling his managerial duties for the group and otherwise engaging in various misdeeds.  As one might suspect, the real-life Jerry Heller sued NBC Universal and a whole cast of defendants for various claims, including defamation, libel, and violation of his right of publicity, to name just a few.  Heller noted in his complaint that “[i]n the film, ‘Jerry Heller’ is played by actor Paul Giamatti.  Plaintiff never approved to [sic] this portrayal.  Defendants did not even bother to give the character a fictional name, like ‘Garry Beller,’ for example.”  The Defendants moved to dismiss.

The U.S. District Court for the Central District of California dismissed the right of publicity claim with prejudice.  According to the Court’s brief analysis, “no cause of action will lie for the publication of matters in the public interest.”   The Court observed that the “public interest defense” is “rooted in the First Amendment, which permits film producers to depict matters in the public arena without fear of liability.”   Because Straight Outta Compton concerns “a public controversy over Plaintiff’s tumultuous relationship with the hugely successful N.W.A.,”  the Court found the right of publicity claim subordinate to the First Amendment.

If the Court’s ruling stands, it will provide even greater protection for filmmakers than the most recent 9th Circuit case on the issue.  As we observed here, the 9th Circuit handed down a right of publicity decision involving the feature filmThe Hurt Locker.  There, the Court upheld the dismissal of the claim noting the important First Amendment protection afforded to “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.” Even “more critically” though, the 9th Circuit found that Sergeant Jeffrey Sarver—the individual whose publicity rights were allegedly violated—had not “invested time and money to build up economic value in a marketable performance or identity.”   Rather, he was a “private person” who “expressly disavowed the notion that he sought to attract public attention to himself.”

Unlike Sergeant Sarver, Mr. Heller does not appear to shy away from the limelight.  In fact, Mr. Heller alleged in his initial Complaint that he is a “highly successful and respected business professional.”  He also claims that he struck a deal to collaborate with Defendants on a screenplay relating to the story of N.W.A.  These facts alone would arguably seem to take Mr. Heller’s claims outside of The Hurt Locker holding.

For now, though, Mr. Heller’s right of publicity claim is kicked straight outta court.  We will see if he can stop the hurtin’ if he takes his case up to the 9th Circuit.