While still a graduate film student at Columbia, Kathryn Bigelow apparently interviewed Nicholas Ray. Ray has been celebrated for his romantic portrayals of outsiders, such as ex-GI and screenwriter “Dix” Steele (Humphrey Bogart) in In a Lonely Place (1950) ...
... or the adolescent Jim Stark (James Dean) in Rebel Without a Cause (1955).
Bigelow repeatedly portrays her central characters as torn between the ease, if dissatisfaction, of conformity and the acute sense of being alive as an outsider, at the risk of one’s sanity and life. Thus, Mae (Jenny Wright) in Near Dark (1987) is torn between her love for Caleb (Adrian Pasdar) and her nighttime family of vampires who enable her to feel a sense of wonder at the brightness and sounds of the night.
Megan (Jamie Lee Curtis) in Blue Steel (1989) is both attracted to and fearful of Eugene (Ron Silver), a stockbroker who enjoys the thrill of his killing spree in which he etches his bullets with Megan’s name on them.
FBI agent Johnny Utah (Kneau Reeves) in Point Break (1991) both hunts down and is drawn to Bodhi (Patrick Swayze), the leader of a group of surfers who rob banks to support their desire to surf the ultimate wave.
In Strange Days (1995) Lenny (Ralph Fiennes) is obsessively in love with the destructive Faith (Juliette Lewis), but he ultimately chooses security driver Mace (Angela Bassett), disappearing into the crowd in the process.
While chosen because of his party loyalty to take charge of the K-19 submarine, Captain Alexei Vostrikov (Harrison Ford) in K-19: The Widowmaker (2002) nevertheless chooses to countermand the party’s orders. He evacuates his crew to a nearby Soviet submarine, thereby remaining loyal to his men so that they might return safely home.
On October 13, 2011, Judge Jacqueline Nguyen of the United States District Court for the Central District of California issues her opinion in which she finds that the movie The Hurt Locker is “transformative” of Sarver’s persona and dismisses Sarver’s complaint in its entirety. She later finds that Sarver is liable to Bigelow, Boal and the other defendants for attorney’s fees of about $187,000.
The case is now on appeal to the US Court of Appeals for the Ninth Circuit.
William James tells his baby son that when we grow up, we love so much, including mommy, daddy, pajamas and the jack-in-the-box, but as we age, they no longer seem so special. We come to love less and less, realizing that even the jack-in-the-box is made of pieces of tin.
“Sarver sits down and takes a deep breath. He looks into the calm Michigan evening, in the nation he has sworn to protect….Then Staff Sergeant Jeffrey S. Sarver, the best bomb tech in Baghdad, puts his dead in his hands, and for two hours straight he cries.” (Playboy article, 153
The judge’s decision and the issues it raises
While it appears that the federal judge in California assigned to oversee the case, Jacqueline H. Nguyen,  [open endnotes in new page] directed the parties to mediate privately their dispute based on a stipulation of the parties,  the court docket, given the normally confidential nature of mediation, is silent as to what, if anything, transpired.  Thus, it is against this background of caselaw, which seeks to balance two conflicting rights, that Boal, Bigelow and the producers moved to strike Sarver’s complaint. Once the motion was fully briefed by both sides and the conflicting sworn statements submitted, the judge issued on August 4, 2011, a tentative ruling whereby she rejected the defendants’ “transformative use” defense. She found that Sarver had presented evidence that (1) he was identifiable as the main character, (2) the movie character was based on him, and (3) he had not consented to the use. She dismissed, however, all of the remaining claims.  On August 8, 2011, she heard oral argument from the attorneys. 
On October 13, 2011, however, Judge Nguyen reversed her tentative ruling and issued an opinion in which she struck Sarver’s complaint in its entirety.  That opinion does not address and is wholly silent on Sarver’s request to take discovery, including those areas of inquiry specifically identified. Instead, after initially finding that California law applied to Sarver’s claim  and that the “[d]efendants [w]ere [e]ngaged in the [e]xercise of [f]ree [s]peech in [c]onnection to a [p]ublic [i]ssue,” the court held that Sarver had failed to show a “[p]robability of [p]revailing” on any of his claims. The court specifically found that Sarver’s claim involved a matter of “public interest” by reasoning as follows:
Turning to Sarver’s right of publicity claim, the court found that “even if the Will James character was based on Plaintiff [Sarver], no reasonable trier of fact could conclude that the work was not transformative….”  In other words, she upheld the defendants’ “transformative use” defense. She reasoned as follows: “To illustrate the expressive content contributed, Defendants cite 29 differences between Plaintiff’s real life experience and the portrayal of Will James.” Moreover, “the value of The Hurt Locker unquestionably derived from the creativity and skill of the writers [sic], directors and producers…Whatever recognition or fame Plaintiff may have achieved, it had little to do with the success of the movie.”
The court then went on to strike all of the remaining claims:
In accordance with California’s anti-SLAPP law, the court summarily found that the defendants, as the prevailing parties, were entitled to an award of their attorney’s fees.
As of this writing, the case is on appeal to the Court of Appeals for the Ninth Circuit.  The appellate court, after conferring with counsel, determined that the case was not appropriate for inclusion in its mediation program,  and briefing was to be completed in September.  Sarver has argued on appeal that the trial court should not have applied California law, since he had been stationed for two years and hence suffered at the time of the movie’s release his injury in New Jersey. Moreover, the court should have denied the defendants’ motion to strike even under California law, since
In contrast, the defendants have argued that the law of California, where nearly all parties reside, not of New Jersey, where Sarver happened to be stationed, governs. Moreover, the movie is “transformative” insofar as any similarities between William James and Sarver consist of “generic similarities” and Sarver’s “likeness” is but one of the many “raw materials” in a work created by the director, screenwriter, actors, and others.  In the meantime Boal has continued to maintain that “The Hurt Locker was inspired by many soldiers I met and interviewed during my time reporting in Iraq and elsewhere.” He has also added:
Underscoring the significance to the Hollywood film industry of the issues raised by Sarver’s lawsuit and his appeal, the Motion Picture Association of American and the Entertainment Merchants Association filed a joint amici curiae – or “friends of the court” - brief.  The MPAA and the EMA argue that motion pictures, like books and other writings throughout history, draw upon “actual events and people”, identifying such well-known films as The King’s Speech, Erin Brockovich, The Perfect Storm and The Social Network, and that if Sarver’s claim were upheld, then numerous films would never have been made, such as Orson Welles’ Citizen Kane, Steven Spielberg’s Saving Private Ryan or James Cameron’s Titanic. Thus, they argue for a broad interpretation of the First Amendment when applied to right of publicity claims in the context of expressive media. Either such claims should be barred entirely or permitted only when the name or likeness is used to attract attention and is unrelated to the work. 
A test that balances conflicting rights is necessarily subjective, value driven, so that a decision on those rights reflects the relative values of the trier of fact. Thus, the trial court’s decision raises as many questions as it answers. Does adding 29 imaginative facts transform the presence of 29 facts taken from Sarver’s life, particularly if some of those imaginative facts are in dispute as to whether they are imaginary? Why is a quantitative test, which simply adds up the number of new facts, appropriate rather than a qualitative test, which examines the nature of the elements and whether those elements when taken together are genuinely “transformative”? Is it of no significance that Boal wrote the Playboy article, which arguably transformed Sarver into a public figure and that the movie in which Sarver’s alleged “avatar” then appeared duplicates the context from which the events from Sarver’s life were taken?
On the other hand, if Sarver has not achieved sufficient celebrity or public figure status, are Boal, Bigelow and the film producers entitled to commercially exploit Sarver’s life? Is not the commercial exploitation of his private life all the more problematic if he has not achieved that celebrity or public figure status? Is the reason for the movie’s commercial success the issue or whether and to what extent Sarver has been recognized, whether by friends or a segment of the public, as the source for the movie’s content? Is the exploitation of an individual’s right of publicity limited to an economic taking or cannot the exploitation consist of benefiting from the intangibles of that person’s privacy? If it is in the public interest to dramatize events based on a person’s life, should that interest require that that person be compensated in some manner? In the case of a non-celebrity, is the extent to which the movie has appropriated that person’s persona and life story relevant? For example, should a distinction be drawn between an incidental appearance of a non-celebrity’s persona in a movie and a movie which focuses entirely upon that persona? As to a non-celebrity’s, is not the civility and respect accorded to one person’s privacy no less culturally important than the openness resulting from another person’s right to free speech?
And what of the manner in which the trial court dismissed factual issues contested by the parties? If Sarver testifies that Boal said to him that the Playboy article was to be about EOD technicians in general and Boal testifies to the contrary, why is Boal’s testimony, not Sarver’s, to be credited? In deciding whether a valid claim has been alleged, is it the role of a judge to act as film critic, finding as a matter of law that the William James character displays compassion for others and is portrayed as a “war hero, struggling with presumably the same conflicts experienced by many modern military soldiers”? Indeed, in deciding that the movie is sufficiently “transformative,” is not the court implicitly finding that the movie is more a narrative about the US war in Iraq than a character study and as such engaging in a critique as to the meaning of the movie?
It is unclear how the federal appellate court will balance Sarver’s right of publicity claim against the defendants’ free speech defense given the current record before the court. Undoubtedly a greater value placed on the free speech relative to an individual’s right of privacy would favor the defendants and vice versa. The Hurt Locker is not a literal depiction of Sarver’s life but instead adds fictional elements. As such, the issue may be whether the appellate court will find either that Sarver was entitled to take discovery and hence will remand the case to the trial court so as to permit discovery or find that there is sufficient dispute as to what is fiction and what is fact so as to call into question whether there are “significant transformative elements”. Alternatively, if the appellate court makes neither finding, then the court may, for example, choose to affirm the trial court’s finding that the use made of Sarver’s life was sufficiently “transformative”, disregard the “transformative” use test and apply a more liberal standard in the context of expressive media or strike Sarver’s claim by reasoning that
Regardless, however, of the outcome of the appeal, Bigelow’s defense to Sarver’s lawsuit represents an ironic commentary on Bigelow’s own directorial career. Bigelow has been sympathetic both before she became a film director  and as a film director to the outsider who resists conforming to social norms and who struggles to achieve a physical and emotional connection to his or her world, including to others similarly situated. Thus, for example, the character Mae in Near Dark (1987) is torn between her nighttime family of vampires and her love for Caleb, whose daytime, “normal” family lacks the emotional genuineness of the former. Likewise, Johnny Utah in Point Break (1991) is torn between the cold comfort offered by the spit and polish of the FBI and the free-floating freedom which Bodhi enjoys as the leader of a group of surfers who finance their search for the exhilaration of the ultimate wave by robbing banks. The Hurt Locker re-enacts that same struggle. James’ story to his son about how as an adult the jack-in-the-box will no longer satisfy and his return in the movie’s last sequence to Baghdad fully suited up to defuse bombs underscore Bigelow’s empathy with James’ plight.
Indeed, as a filmmaker Bigelow has largely pursued a career as an outsider to Hollywood. The publicity surrounding the Oscar nominations to both her and James Cameron can be read not only as a competition between former spouses but also as a contrast in differing positions within the movie industry – the independent director of art-house films as opposed to the highly successful, commercial filmmaker. The decision in the lawsuit enshrines Bigelow’s freedom to express her artistic vision, but it does so at the expense of another person lower on the economic food chain. Ironically, while she publicly and enthusiastically praises on Oscar night the valor of our heroic soldiers, she glosses over the consequences of her personal responsibility to them. “We’re there for them,” she announced - but only so long as it costs her nothing?
The obvious question is why Bigelow and Boal apparently embarked upon their artistic project but never sought to make Sarver a member of their “family” engaged in that project. While Boal allegedly disclosed to Sarver after the publication of the Playboy article Boal’s intention to write a screenplay, did neither Boal nor Bigelow not think to engage Sarver somehow in their project? Leaving aside what the law may require, why did neither one early on, for example, not offer to Sarver that he act as consultant to the production and/or offer to compensate him in some manner if the film were commercially successful? Either could have approached Sarver without conceding or otherwise admitting, as is typical in negotiations, that Sarver was entitled to any compensation. Were they conservatively counseled, as a prophylactic measure, not to do so, particularly lest they set a “precedent”?  Or did Bigelow and Boal, as liberal intellectuals, simply never empathize with the conservative leanings and lifestyle of Sarver, notwithstanding their sympathies for the fictional William James? Did they lack the compassion to understand one no less a professional than themselves - but in the context of the everyday, mundane working class soldier who disarms bombs, rather than the rarified atmosphere of the creator of aesthetic visions?
Increasingly, the First Amendment limits those who would speak with their voices and instead empowers those with the capital to speak.  In Sarver’s case, if the trial court’s decision is affirmed on appeal, Sarver will be obligated to pay the substantial expenses of Bigelow, Boal and the producers of the movie resulting from their far greater resources which were brought to bear in defending against Sarver’s lawsuit. The defendants collectively sought reimbursement of nearly $ 220,000 in expenses,  and the trial court has approved about $187,000.  Recently retired from the military in late 2011 after 20 years of service  and not offering to post during his appeal either a bond or other form of security so that the defendants may now seek to enforce their judgments,  Sarver claims that the defendants’ collective judgments, if and when enforced, will result in his filing for bankruptcy.  The tactical decision to file suit in New Jersey and the resulting transfer to California plainly ratcheted up the stakes, and Sarver, in seeking to vindicate his alleged rights, now finds himself financially crushed.
Sadly, the outcome to date of Sarver’s lawsuit exemplifies the truism that the privileges of the law are not equivalent to the empathy demanded by ethics and morality. Ironically, Bigelow’s own films make clear that distinction. Bodhi and his family of surfers rob banks, but Bigelow nevertheless empathizes with them throughout the film. What is the theme of Bigelow’s K-19: The Widowmaker (2002) but that the law demanded by the state can be no substitute for the morality which defines the family? Captain Alexei Vostrikov is transformed from loyal party member, who unquestioningly follows the orders of the state, to submarine commander, who countermands the orders of his superiors so that the remaining members of his loyal crew might survive the journey back home.
Art is increasingly a commodity, and motion pictures, which seek to entertain masses of people, have always been a business. As courts have recognized, however, they can also express ideas and in the case of Bigelow’s films render significant, cultural commentary. Nevertheless, is it enough for an artist, such as Bigelow, simply to portray the struggles of her characters to find a place outside of social norms where emotional connections can be made? Or should she not also embody and exemplify that struggle in her own life? If Bigelow had no legal obligation to Sarver, did she not have an ethical or moral obligation? The law is not equivalent to the ethical and moral obligations we owe to one another. As one court has observed in an entirely different context:
When law becomes separated from ethics and morality, then it is frequently only a question of the relative capital of the respective parties.  In this case, in telling the story of the jack-in-the-box, Bigelow has created for a real life William James an adulthood in which he remains alone in his bomb suit, a hero in name only. The jack-in-the-box is indeed made of pieces of tin.
Bigelow’s goal as a filmmaker has clearly not been simply to achieve commercial success. Her films as a consequence frequently challenge and make us uncomfortable with the compromises that we make without noticing throughout our lives. Her films are less about their narratives, the sequence of events portrayed, than they are about the portrayals of characters torn between two worlds. Yet her failure in this case to achieve a satisfactory reconciliation with what could arguably be viewed as her own, self-created doppelganger in the form of Sgt. Sarver/James is no less tragic than the similar failures by her own fictional characters – Mae in Near Dark, Megan in Blue Steel, Johnny Utah in Point Break or Lenny in Strange Days (1995). The lawsuit against Bigelow’s The Hurt Locker gives new meaning to oft-repeated admonition: “Never trust the artist. Trust the tale.”  In originally writing about The Hurt Locker I concluded with the following observation:
Bigelow, as cultural critic, is surely attuned to, and responsible for, seeking to make those values which morally satisfy present in her own world.