With everyone from Hollywood producers to video game makers poring over the headlines for compelling people stories to convert into hot properties or products, California’s right of publicity law long has sought to: recognize that an individual’s identity holds economic value; and protect celebrities and average folk alike, so they can control and profit from their name and likeness. The Golden State has been joined by others in crafting publicity rights that have protected notables like Michael Jordan  and Aretha Franklin.

But the U.S. Court of Appeals for the Ninth Circuit has just clarified what happens when state publicity rights clash with First Amendment claims, especially in an instance involving a transformative retelling of the life of an ordinary individual thrust into great events of the time.

The case involved Jeffrey Sarver, a onetime master sergeant, bomb disposal expert, and Iraq war veteran. He claimed that the main character in The Hurt Locker, as played by Jeremy Renner, was based on his life. As The Washington Post reported: “Sarver sued, claiming the film violated his ‘right of publicity’—his right to control the commercial use of his identity (here, not his name or likeness but elements of his life story).”

The appellate court disagreed, finding the First Amendment barred Sarver’s claims because the Oscar-winning film was transformative and did not just piggyback on his story nor its economic value.  As federal judge Diarmuid O’Scannlain wrote for the appellate court: “[i]n 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 transform them into art, be it articles, books, movies, or plays.”

How did the appellate court come to blow up Sarver’s claims?


Background

Sarver noted that screenwriter Mark Boal interviewed his unit for an article in Playboy in 2008. That piece subsequently became the foundation for the film, and Sarver also sued the men’s magazine for defamation. After Hurt Locker turned into a hit, Sarver sued the film and its affiliates in 2011; his suit was dismissed by a federal judge.  U.S. District Judge Jacqueline Nguyen found “no reasonable trier of fact could conclude that the work was not transformative.” She wrote that “[e]ven assuming that [Sarver] and Will James share similar physical characteristics and idiosyncracies, a significant amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie.”

Thereafter, as The Hollywood Reporter, has observed, “[t]he case spent several years in purgatory as the Ninth Circuit waited to see whether the U.S. Supreme Court would take up review of a publicity rights case involving athletes suing over video games. Last autumn, when that didn’t happen, the Ninth Circuit indicated that it would move forward.” The trade industry pub called the appellate judges’ upholding of Nguyen’s ruling, the “strongest possible endorsement of the filmmakers’ free speech rights.”

Courts previously had held that the First Amendment protects unauthorized use of another’s identity if it adds significant creative elements or provided social commentary. This has become part of Right of Publicity 101. In Sarver’s case, the court found that applying California’s right of publicity law would violate the First Amendment because such a restriction would be purely “content-based speech restriction” and unconstitutional unless the sergeant showed a compelling state interest; the appellate judges said he did not.

Zacchini Revisited

The appellate court looked back to 1977, in Zacchini v. Scripps-Howard Broadcasting Co., to set up its boundaries for publicity right claims. The court stressed its view of Zacchini that publicity rights hold only “where the defendant appropriates the economic value that the plaintiff has built in an identity or performance.” Zaccchini, just to remind, performed as a “Human Cannonball;” a news reporter recorded the 15-second act in which Zacchini flew from a cannon and broadcast it. That action, the court found, had deprived Zacchini of a valuable commercial property right. O’Scannlain explained the appellate court could apply Zacchini to protect economic value a plaintiff had built in an identity or performance, such as also occurred in a controversy involving celebrity Paris Hilton. Unfortunately for Sarver, the court did not find evidence that he made “the investment required to produce a performance of interest to the public.”

In Sarver, the filmmakers’ First Amendment rights moved to the fore, for the appellate court. The judges noted that the Iraq was a a huge matter of central concern to the American public, and that Sarver’s role in it, with the creative additions and changes in Hurt Locker, had First Amendment protected things to say about U.S. policy and actions overseas.

The appellate decision, “supports applying the right of publicity in only the most narrow of circumstances: when a person’s identity is used in a commercial advertisement, or when the value of a plaintiff’s entire performance or persona is usurped. This re-aligns right of publicity law to accord greater respect for First Amendment values,” said an analysis posted by Kelli L. Sager, Karen A. Henry, Brendan Charney on the website of Davis Wright Tremaine, a Los Angeles firm noted for its First Amendment cases.

O’Scannlain dismissed Saver’s defamation claim, finding the sergeant’s reputation hardly was harmed. Actor Renner portrayed a heroic character who “certainly would not ‘highly offend’ a reasonable person.” Instead  “a reasonable viewer of the film would be left with the conclusion that the character Will James was a heroic figure, albeit one struggling with certain internal conflicts.”  The court also rejected Sarver’s false light claim.

CBS News has reported that, “Sarver’s attorney, Michael Dezsi, says the ruling is disappointing, and he’s considering how to proceed, including an appeal to the U.S. Supreme Court.” Boal commented that: “I am pleased that the court found that artistic expression in films such as The Hurt Locker is fully protected by the First Amendment. This is an important victory for all filmmakers.”