The Hurt Locker Movie Lawsuit: Right of Publicity and the First Amendment
Can you base a character in a movie, book, video game, etc., on a real person?
The short answers are “it depends” and “be careful.”
There’s tension between the First Amendment to the US Constitution, which guarantees freedom of speech, and the “right of publicity,” which says that a person has the right to control the use of his or her name and likeness for commercial purposes.
The First Amendment
The First Amendment to the Constitution says:
Congress shall make no law…abridging the freedom of speech, or of the press…
That sounds pretty straightforward, but there are limits to our freedom of speech. The most common example is you’re not free to shout “Fire!” in a crowded theater as that could “incite actions that could harm others.” You’re also not allowed to libel other people.
Freedom of the press includes the right to report on what real people do; freedom of speech includes the right to “use” reality, including certain details about real people, when creating new stories.
Right of Publicity
The right of publicity, on the other hand, puts a limit on free speech based on real people. A person is entitled to control the use of his or her name or likeness for money-making purposes. So what happens when the First Amendment right to free speech conflicts with someone’s right of publicity? Confusion.
Sometimes people will file lawsuits against critics or others as a way to intimidate them into silence. Such a lawsuit is known as a “Strategic Lawsuit Against Public Participation,” or SLAPP lawsuit. Some states, such as California, have enacted “Anti-SLAPP” legislation, allowing a court to quickly throw out a lawsuit on First Amendment grounds.
The Hurt Locker Case
US Army Master Sergeant Jeffrey Sarver sued the makers of the film The Hurt Locker for misappropriating his life story. The screenwriter for the film, Mark Boal, spent time with Sarver’s unit in Iraq and wrote a piece about his life story for Playboy magazine. The main character in the film has a different name, but many details in the character’s life seem to be based on Sarver.
The Ninth Circuit Court of Appeals threw out the lawsuit, in keeping with California’s Anti-SLAPP legislation. In its ruling the court said:
‘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...
The court found that Sarver had never attempted to exploit his story for commercial purposes, and that the filmmakers were using the story to explore an issue of “public concern.”
Court cases on the use of likenesses of professional football players in video games have also generated mixed results — some favoring the players, others not.
The bottom line: be very careful if you use a real person’s likeness, name, story, etc., in a creative work, especially one intended to make money.