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 F.3d 686 (9th Cir. 1998)(Dodger’s pitcher Don Newcombe’s image in a printed beer ad).)  In dismissing, the Ninth Circuit found the filmmakers had met their burden, but that the plaintiff had not shown a probability of success on the merits.

The decision should provide substantial comfort to filmmakers telling stories based upon or “inspired by” real-life events whether such films portray the real persons by name or fictionalize the story for dramatic purposes. However, the Ninth Circuit’s opinion is somewhat more nuanced and deserves a closer reading for its other aspects that may give guidance on how such claims may be litigated in the future.

One of the potentially more important, but easily overlooked, aspects of the case is its choice of law dimension. Sarver initially brought the case in New Jersey with the defendants successfully removing it to California, likely because New Jersey does not have a SLAPP statute.  That, however, did not end the inquiry, since the Ninth Circuit then needed to determine whether New Jersey law, without SLAPP, still applied.  Although federal courts in a diversity suit would normally apply the choice of law rules of the forum state, the rule is different where the case is transferred.  In that instance, the transferor court’s conflicts rules apply.  Thus applying New Jersey conflicts principles, the Ninth Circuit ultimately found that the state with the most “significant relationship” to the claim was California since much of the conduct and most of the parties were centered in California and, likely very significantly, because Sarver could not convincingly demonstrate his domicile was New Jersey where he was merely posted by the Army when the film was released.  The Court also held that New Jersey’s interest in not applying SLAPP principles did not outweigh California’s interest in preserving them since certain New Jersey courts had already suggested that SLAPP suits required heightened judicial sensitivity to First Amendment concerns.  In other words, filmmakers facing publicity and privacy rights claims will likely face a friendlier forum in California than in those jurisdictions which have less protective SLAPP statutes or possibly no SLAPP at all.

Hurt Locker is also notable for a judicially rare, but highly instructive discussion of the Supreme Court’s publicity rights holding in the “Human Cannonball” case, Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).  Scripps-Howard, as part of its news reporting, recorded and broadcast Zacchini’s entire 15-second performance of being shot from a cannon, thus depriving him of a valuable commercial property right.  The Supreme Court held that the First Amendment interest in broadcasting the entire performance was minimal since it would have otherwise prevented Zacchini from charging an admission fee for what the public had already enjoyed for free.  The Ninth Circuit explained it would apply Zacchini to protect the economic value a plaintiff had built in an identity or performance, such as in the Paris Hilton case.  However, such precedent did not save Sarver who did not “make the investment required to produce a performance of interest to the public” (quoting Zacchini).  Intriguingly, the fact that Sarver had expressly avoided the public eye, actually made his publicity rights claim less viable. The Court stated, “Neither the journalist who initially told Sarver’s story nor the movie that brought the story to life stole Sarver’s ‘entire act’ or otherwise exploited the economic value of any performance or persona he had worked to develop.”  While a privacy claim could have still been viable, it would appear as though Sarver’s voluntary interview with the screenwriter Boal, coupled with his publicly documented military exploits, would have limited the scope of any such privacy claim since the film deals almost entirely with Sarver’s public actions in Iraq with only incidental references to his private life at home.

The Ninth Circuit concludes with a passage likely to be often quoted: “In sum, 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 – including the stories of real individuals, ordinary or extraordinary – and transforms them into art, be it articles, books, movies, or plays.”