First Amendment Trumps Publicity in Hurt Locker Case

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 1, 2017

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soldierThe Ninth Circuit has ruled that the plaintiff’s right-of-publicity claim was trumped by the defendants’ First Amendment rights in a case involving the Oscar-winning film The Hurt Locker.

The case of Sarver v. Chartier was brought by Sergeant Jeffrey Sarver, who served as an Explosive Ordnance Disposal (EOD) technician in Iraq during 2004 and 2005.

In 2004, Mark Boal, a journalist who worked for Playboy Magazine, was embedded with Sarver’s unit.

Boal followed Sarver around and took pictures and videos of him, as well as interviewed him.

Boal wrote an article that focused on Sarver’s life and experiences in Iraq, and this was published in Playboy. The article included two photos of Sarver.

Sarver claimed that he never consented to this use of his photo.

Boal later wrote a screenplay that was produced as the movie The Hurt Locker.

Explosive

As Above the Law notes,

Will James, The Hurt Locker’s main character, was played by actor Jeremy Renner. Renner was essentially the same age and height as Sarver. Renner dyed his hair blonde and adopted Sarver’s West Virginia accent and certain personality traits to impersonate Sarver. In the movie, Will James, like Sarver, was a former Army Ranger with a young son living with his ex-wife back home. Most of the EOD (explosive ordinance disposal) missions depicted in the movie are identical to Sarver’s real missions and James, like Sarver, set the record for the most IEDs (improvised explosive devices) disarmed by any single soldier.

The movie was relatively unsuccessful commercially, earning only a little more than its budget of $15 million at the US box office.

However, the movie was critically acclaimed, earning six Oscars, including awards for Best Picture, Best Director, and Best Screenplay.  Renner was nominated for Best Actor.

Economic Value

The court noted that it has upheld the right of publicity in contexts where the defendant appropriated the “economic value” that a plaintiff had built up in an identity or performance:

For example, in Hilton v. Hallmark Cards, we held that Paris Hilton could pursue a right of publicity claim for Hallmark’s use of her image and catch phrase (“that’s hot”) from her television show in one of its greeting cards. [cite] In doing so, we suggested that “merely merchandising a celebrity’s image without that person’s consent, the prevention of which is the core of the right of publicity,” is not protected by the First Amendment. [cite] Similarly, in Keller v. Electronic Arts, Inc., we upheld an action by a college football player who sought to prevent the use of his likeness in EA’s video game. 

The court concluded:

In sum, our precedents have held that speech which either appropriates the economic value of a performance or persona or seeks to capitalize off a celebrity’s image in commercial advertisements is unprotected by the First Amendment against a California right-of-publicity claim.

First Amendment

The court held that its previous right-of-publicity decisions didn’t apply in this case:

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. If California’s right of publicity law applies in this case, it is simply a content-based speech restriction. As such, it is presumptively unconstitutional, and cannot stand unless Sarver can show a compelling state interest in preventing the defendants’ speech. Because Sarver cannot do so, applying California’s right of publicity in this case would violate the First Amendment.

Commentator Eugene Volokh, writing in The Washington Post, agreed with the court’s conclusion but questioned its analysis:

The movie “exploited the economic value” of what Sarver did for a living, just as the sports video games exploited the economic value of what the football players did for a living.

Takeaway

Using the details of a living person’s life, whether for artistic or commercial purposes, is best approached cautiously and with the advice of an attorney.

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