First Amendment Prevents Right Of Publicity Claim Arising From Film About 'Issues Of A Public Nature'

Sgt. Jeffrey S. Sarver v. Nicolas Chartier, et. al. In a lawsuit involving the 2010 Oscar-winning film The Hurt Locker, the US Court of Appeals for the Ninth Circuit held that right of publicity claims arising from expressive works, including films, are in essence content-based restrictions on speech that are presumptively unconstitutional, and affirmed the district court order dismissing the lawsuit on constitutional grounds. Sgt. Jeffrey S. Sarver v. Nicolas Chartier, et. al., Case No. 12-55429 (9th Cir., Feb. 17, 2016) (O'Scannlain, J).

In 2004 and 2005, Army Sergeant Jeffrey Sarver led the 788th Explosive Ordnance Disposal Company that identified and disposed of improvised explosive devices (IEDs) in Iraq. Sarver contended that Will James, the main character of The Hurt Locker, was based on Sarver, because the film's screenplay was written by Mark Boal, a journalist who had been embedded with the 788th in Baghdad. Sarver believed that the film falsely portrayed him in a negative manner and hurt his reputation. Asserting that he did not consent to use of his likeness in the film, Sarver filed suit against several parties involved in the making of The Hurt Locker, alleging causes of action for misappropriation of likeness and right of publicity, invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud and misrepresentation.

On defendants' motion, the case was transferred from New Jersey to California, and defendants then filed motions to strike the complaint under California's anti-SLAPP statute. The anti-SLAPP law provides for early dismissal of meritless First Amendment cases aimed at chilling expression.

The district court concluded that The Hurt Locker constituted an exercise of free speech in connection with a public issue. Moreover, it found that any similarities between Sarver and the main character of the film were transformed by the significant amount of original expressive content in the screenplay and through direction and production of the movie. After the district court dismissed Sarver's claims, he appealed.

Before looking at the merits of Sarver's claims, the Ninth Circuit considered whether California law was properly applied and whether defendants' anti-SLAPP motions were timely filed. The Court determined that California law applied in the federal diversity action, because under New Jersey choice of law, California had the most "significant relationship" to The Hurt Locker...