The Ninth Circuit, applying California’ anti-SLAPP statute, affirmed the dismissal on First Amendment grounds of Master Sgt. Jeffrey Sarver’s right of publicity lawsuit, in which Sarver claimed that the Oscar®-winning film The Hurt Locker misappropriated his life story. According to Sarver, the film’s main character, Will James, was based on Sarver’s own life and experiences when he served as a U.S. Army explosive ordnance disposal technician in Iraq and was lifted from a previously published article about Sarver’s experiences.
Defendants—a group that included the film’s screenwriter, director, and several corporate entities involved in the film’s production—filed a motion to strike Sarver’s complaint relying on California’s anti-SLAPP statute, which permits the early dismissal of lawsuits aimed at limiting expression and free speech. To succeed, the defendants must satisfy both prongs of a two-part analysis:
- A defendant must first demonstrate that he or she was engaged in the exercise of free speech in connection with a public issue; and
- Once a defendant has made such showing, the court must evaluate whether a plaintiff has established a reasonable probability of prevailing on his or her claims.
The Ninth Circuit found that defendants easily satisfied the first prong because the film offered a unique portrayal of the Iraq War, a matter of significant and sustained public attention. Sarver contended that the Court’s focus should not be on whether the war, generally, was a matter of public concern, but whether the film’s portrayal of his private persona was a matter of public interest. The Court disagreed, noting that the role of Improvised Explosive Devices (IEDs) in the war was also an issue of public concern, and Sarver’s alleged portrayal in the film focused on his purported film doppelganger Will James’s responsibilities concerning the dismantling of IEDs. The Court acknowledged that the film’s main character allegedly incorporated certain of Sarver’s personal characteristics, but determined that such characteristics were utilized only in the context of the character’s experience in Iraq and not elsewhere. Stated differently, the private aspects of his life and personality that Sarver claims were misappropriated were inherently entwined with the film’s alleged portrayal of his participation in the Iraq War, which was a matter of public concern.
The Court next turned to the second prong, whether Sarver was likely to prevail on his right of publicity claim. While the Court expressed doubt as to whether Sarver could meet each element of a right of publicity claim, the Court never reached the question, ultimately finding that such a claim could not stand in any event because it impermissibly infringed on the defendants’ right to free speech. The Court explained that California’s right of publicity law clearly restricts speech based on its content. In many commercial contexts, such restriction is appropriate. By way of example, the court explained that Paris Hilton was able to successfully pursue a right of publicity claim against Hallmark for the use of her image and catch phrase in one of its greeting cards; similarly, former collegiate athlete Samuel Keller was entitled to prevent Electronic Arts from using his likeness in a college football video game. Essentially, the Court explained, a publicity rights claim is proper when a defendant’s actions interfere with a plaintiff’s ability to capitalize on his or her persona or public performance, and in those instances, speech is unprotected by the First Amendment.
In contrast, according to the Court, Sarver is neither a celebrity nor someone who has devoted time and money to developing a mass-marketable skill, talent, or identity. The right of publicity is intended to protect the economic value of a performance or persona; the court determined that Sarver needs no economic incentive to live his life as a soldier as he otherwise would. In contrast, The Hurt Locker is a form of creative, expressive speech that is fully protected by the First Amendment. Sarver’s publicity rights claim ultimately provided insufficient justification for curtailing the defendants’ valuable speech rights, and, without a viable publicity rights claim, Sarver could not demonstrate a likelihood of succeeding in the lawsuit.
The Ninth Circuit’s decision, while practical and seemingly straightforward, actually represents a delicate exercise in line-drawing. The Court’s ruling protects the right of filmmakers (and other artists) to portray real-world events and individuals of public interest, and to engage in meaningful public speech concerning such events and people, without fear of publicity rights lawsuits initiated by living individuals who are portrayed or referenced. The Court appears to draw a line between the use of persona that is necessary to portray a character in an expressive work, as opposed to the use of persona that proposes or promotes a commercial transaction. The thorny area raised by California’s line of right-of-publicity cases is the area of video games. While video games are, like film, expressive works, they often depict athletes and entertainers in the same manner in which they’ve achieved renown (i.e., the same setting in which they’re paid to perform). Despite the expressive quality of video games, the Ninth Circuit has upheld publicity rights claims in the video game context.
As California’s right of publicity jurisprudence continues to develop, it remains to be seen how publicity rights will be weighed against the First Amendment and the ability to create expressive works on matters of public interest or concern.