First Amendment SLAPPs Publicity Right Plaintiff In 'Hurt Locker' Case

On February 17, 2016, the Ninth Circuit affirmed the dismissal by the Central District of California under the California anti-SLAPP statute of a publicity rights claim against the motion picture "The Hurt Locker." The plaintiff, Army Sergeant Jeffrey Sarver, an explosive ordnance disposal technician in Iraq, claimed the film appropriated his life story. Sarver v. Chartier, Ninth Circuit, Case No. 11-56986 decided February 17, 2016.

The motion picture "The Hurt Locker" tells the story of fictional Army Sergeant First Class William James, portrayed by Jeremy Renner, as he leads a team of specialists protecting lives by disarming explosive devices during the Iraq War. The critically acclaimed film, released in 2009, won six Academy Awards, including, Best Picture, Best Director (Kathryn Bigelow, the first and only female director to win this award) and Best Original Screenplay (Mark Boal). Boal based the screenplay on his personal coverage of the Iraq War where he observed Sgt. Sarver and later interviewed him back in the States. Sarver asserted that Boal, without authorization, published a factual account about Sarver in Playboy magazine then later fictionalized the story in the film.

California's anti-SLAPP ("Strategic Lawsuit Against Public Policy") statute was enacted to allow early dismissal of meritless actions which might otherwise inhibit the exercise of First Amendment rights through costly and time-consuming litigation. The statute authorizes dismissal where the defendant demonstrates the complained of actions are in furtherance of protected First Amendment activity, thus shifting the burden to the plaintiff to demonstrate a probability of success on the merits.

The Ninth Circuit had no difficulty in finding that the motion picture was an expressive work about a matter of public interest entitled to the highest level of First Amendment protection. This was in contrast to commercial speech where an individual's publicity rights may more readily prevail. The Court, as examples of less protected commercial speech, cited Paris Hilton's claim against Hallmark's use of her image and catch phrase "that's hot" on greeting cards (Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2009) ("merely merchandising a celebrity's image"), Keller v. Electronic Arts, Inc., 724 F.3d 1268 (9th Cir. 2013) and Davis v. Electronic Arts, Inc., 775 F.3d 1172 (9th Cir. 2015)(football players interpolated into video games) and Newcombe v. Adolf Coors Co., 157...