Hurt Locker Decision Clarifies Differences In First Amendment Interests And Personal Interests Protected By The Right Of Publicity

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...