JUMP CUT
A REVIEW OF CONTEMPORARY MEDIA

Sgt. Jeffrey Sarver in real life “’rendered safe the largest number of IEDs [improvised explosive devices] that were disarmed by any one team since operations began in Iraq.’…. [He] is officially a hero. Nestled in the pocket of his shirt is a Bronze Star.” (Playboy article, 152)

In the movie The Hurt Locker (2010), Sgt. William James (Jeremy Renner) and his team disarm more IEDs than any other team in Iraq.

During the Iraq war, unlike the Vietnam War, as part of the U.S. Department of Defense’s policy of placing media representatives to live and travel with military units in order apparently to avoid the publication of misinformation, Mark Boal in 2004 is embedded with Sarver’s unit in Iraq.

Sarver is the subject of Boal’s 2005 Playboy article about the U.S. war in Iraq.

On February 2, 2010, the Oscar nominations are announced, and Kathryn Bigelow’s The Hurt Locker ...

... and James Cameron’s Avatar are the leading contenders. The announcement is Hollywood drama, pitting ex-spouses against one another as well as independent filmmaker against a highly successful, commercial director.

Five days before Oscar night Sarver files a lawsuit in New Jersey in which he names those connected with the movie The Hurt Locker, including Bigelow and Boal, director and screenwriter, respectively. He alleges that they have misappropriated his life story.

Nevertheless, on Oscar night Bigelow and Boal appear triumphant, when The Hurt Locker wins awards for Best Picture, Directing and Writing. Bigelow states in her acceptance speeches:

“I would not be standing here if wasn’t for Mark Boal who risked his life for the words on the page and wrote such a courageous screenplay...To men and women all over the world who...wear a uniform...[T]hey’re there for us and we’re there for them...”

“Then he would go down on the bomb alone and feel the Morbid Thrill. Then he'd come back uprange glowing from the rush…” (Playboy article, 150)

“Sarver keeps recovered bomb parts in a box by his bed.” (Playboy article, 151)

“When Sarver is finished, the colonel…comes up to congratulate him….’Are you the crazy man in the bomb suit?’ the colonel asks. ‘Yes, sir, that was me.’ ‘Look at that hero. America’s finest. That is some good shit…’” (Playboy article, 151)

“After coming back to the base…he would sort the bits of wiring he’d picked up on Baghdad’s streets…In these devices Sarver could read the history of the insurgency as it grew in ferocity and sophistication.” (Playboy article, 150)

“The traffic on the roads gives cover to car bombers, who merely have to pull alongside your Humvee and wave hello.” (Playboy article, 149)

“Now he walks from the center of the blast, his flashlight illuminating the progress of the destruction…Sarver aims his light up into the branches of a tree and finds an orange, perfect and ripe.” (Playboy article, 152)

Having returned to Wisconsin from his latest tour of duty, Sarver “finds the place just as he left it…He sits on the couch, checks out his mounts, orders pizza and watches TV.” (Playboy article, 153)

 

 

The Hurt Locker litigation:
an adult’s story

by Robert Alpert

Opening remarks

During the summer of 2009 I saw The Hurt Locker and by early 2010 had written an  essay for Jump Cut entitled “Kathryn Bigelow’s The Hurt Locker: a jack-in-the-box story.”[1] [open endnotes in new window] The essay summarizes the dilemma of its central character, Sgt. William James, by focusing on the movie’s penultimate scene:  

“There is no more poignant scene than that of James with his baby son and the jack-in-the-box so cherished by his son. When we grow up, we love so much, including mommy, daddy, pajamas and the jack-in-the-box, he tells his uncomprehending son, 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 — or plastic, like the Radio Shack pieces which James keeps beneath his bed. Thus, James comes to embrace death….He rejects the comforts of his social world, the soothing music of the supermarket, a world which insists that death is nowhere to be found and that we are the master of all that we survey, in short, a world that lacks the imagination to see what is beyond our own gaze. In that rejection, though, he finds himself alone and marching inexorably to his own death, a bleak ending for Bigelow’s stated hero.”

This follow up essay traces the real life consequences of Bigelow’s movie to a “stated hero.” As the Oscar awards night in March 2010 drew closer, an army sergeant named Jeffrey Sarver sued Bigelow, her screenwriter Mark Boal, and the producers of The Hurt Locker. The film had been nominated for several Oscar awards, and Sarver claimed to be the source for the William James character. My immediate reaction was that his claim had no basis, that he was looking to take advantage of the film’s unexpected success, and that the right to free speech under the First Amendment of the U.S. Constitution would result in the dismissal of his claim.

Having reviewed the documents filed in connection with that lawsuit, which, as of this writing in mid- September 2012, is still pending on an appeal from the trial court’s decision, I now read the irony of my first essay’s summary of the film’s theme:

“In depicting the daily activities of a U.S. bomb squad in Iraq, Kathryn Bigelow continues to explore the rules of engagement of her culture and the resulting emotional schizophrenia and deathly effect on those who would challenge those rules.”

Real life in this instance did have its “deathly effect on [one] who would challenge those rules.” Those “rules” in this case consisted of the apparent legal right to commercialize aspects of Sarver’s persona and life without his consent in the public interest of publicizing those aspects in the context of a drama depicting the US war in Iraq.

Background to the dispute

On February 2, 2010, the Oscar nominations for the films of 2009 were announced. The Hurt Locker, which had been directed by Kathryn Bigelow and written by Mark Boal, was among the ten films nominated for Best Picture. Avatar, directed and written by James Cameron, Bigelow’s former husband, was also on that list. Bigelow and Cameron were also both nominated for best directors. As Oscar night, March 7, 2010, approached, there was clearly a focus on the competition between these two films. Only five days before that night, on March 2, however, Sergeant Jeffrey Sarver, a nearly 20-year career soldier in the U.S. Army [2], sued in New Jersey federal court Bigelow, Boal, Summit Entertainment and others connected with the movie. In his complaint, in which he demanded a jury trial, Sarver alleged numerous claims as a result of the release of The Hurt Locker, including claims for “misappropriation” of his name and likeness, “false light invasion of privacy”, defamation, breach of contract and fraud.  Given the timing of the lawsuit’s filing, there was obviously press coverage.

While financially far less successful than Avatar [3], Bigelow’s The Hurt Locker triumphed on Oscar night over Cameron’s Avatar, and was awarded Oscars for Best Picture, Directing and Writing (Original Screenplay). In accepting her award for best director, Bigelow acknowledged her debt both to screenwriter Boal and to the military whose story Boal’s screenplay had described: [4]

“I would not be standing here if it wasn't for Mark Boal, who risked his life for the words on the page and wrote such a courageous screenplay…..And I'd just like to dedicate this to the women and men in the military who risk their lives on a daily basis in Iraq and Afghanistan and around the world. And may they come home safe.”

In accepting his award for best original screenplay, Boal echoed that debt to the military:

 “I would also like to thank and dedicate this to the troops: The hundred and fifteen thousand who are still in Iraq, the hundred and twenty thousand in Afghanistan, and the more than thirty thousand wounded and four thousand who have not made it home.”

And in accepting with others the Oscar award for Best Picture, Bigelow underscored that sentiment:

“And perhaps one more dedication: To men and women all over the world who, sorry to reiterate, but wear a uniform. But even not just the military – hazmat, emergency, firemen. You know, they're there for us and we're there for them…..”

Sergeant Sarver’s lawsuit was soon forgotten. Only late in 2011 did news of the lawsuit resurface when a California federal court found that Sarver’s claims were deficient as a matter of law and dismissed the entire case. [5] Sarver’s essential claim had been that he, Sarver, is William James, that The Hurt Locker is his story, and that neither Boal nor Bigelow was entitled to portray his story without his consent, let alone in a manner which allegedly placed him in a “false light”. In dismissing the lawsuit, the court awarded to the defendants their attorney’s fees so that Sarver must pay their expenses in defending against the lawsuit. While Sarver has appealed the trial court’s dismissal, it is hard not to view in hindsight the dismissal of his case as inevitable given an arguable misstep on his part and the consequences of a contrary decision to the Hollywood film industry. It is also hard not to view the lawsuit as an ironic vindication of Bigelow’s disillusionment with adulthood, which her stated hero, William James, conveyed to his uncomprehending son in the telling of the jack-in-the box story. 

Sarver’s connection to The Hurt Locker began in 2004. Wishing to avoid adverse or misinformed press coverage and presumably hoping to facilitate favorable coverage, the U.S. Department of Defense had announced a policy whereby reporters would be attached to – or “embedded” with - military units. The Department of Defense allegedly [6] wrote as follows about the purpose of “embedding media”:

“Media coverage of any future operation will, to a large extent, shape public perception of the national security environment now and in the years ahead…Our ultimate strategic success in bringing peace and security to this region will come in our long-term commitment to supporting our democratic ideals. We need to tell the factual story – good or bad – before others seed the media with disinformation and distortions…Our people in the field need to tell our story…To accomplish this we will embed media with our units. These embedded media will live, work and travel as part of the units with which they are embedded to facilitate maximum, in-depth coverage of U.S. forces in combat and related operations….”

Mark Boal, an experienced freelance journalist of many years for such publications as the Village Voice and Rolling Stone, was “embedded” in 2004 as a journalist for Playboy with U.S. military troops stationed in Iraq. Boal was embedded, in particular, for a period of time with Sarver’s explosive ordinance disposal (“EOD”) unit, which undertook the daily task of disarming improvised explosive devices (“IEDs”). Sarver headed this particular EOD unit and, in accordance with the Department of Defense’s policy, cooperated with Boal so that Boal could experience firsthand “the factual story” of the military “in the field.” As Sarver has acknowledged, Boal later also interviewed Sarver in Wisconsin after Sarver had returned to the United States from his then tour of duty. [7]

Boal wrote and Playboy published in its August/September 2005 issue an article about Boal’s experiences in Iraq, and the article focused on Sarver. [8] The “title” alone makes this clear:

“For Staff Sergeant Jeffrey Sarver of the U.S. Army’s 788th Ordinance Company, the war in Iraq couldn’t get any more personal. What it’s like to be THE MAN IN THE BOMB SUIT.”

The article details Sarver’s personal life story. Thus, the article describes Sarver’s formative childhood: [9]

“When Sarver was six years old his dad, a carpenter, took him hunting for the first time. They left the trailer park near Huntington, West Virginia and went into the forest. Dad showed him how to be alone, how to be self-sufficient. If you were willing to bear the isolation of waiting for hours in a thicket, you could catch an animal in its natural grace, a flash of fur, muscle and hoof. His mother never understood him, Sarver says. She always wanted to take him shopping, to visit relatives and socialize. ‘Sorry, Mom,’ he’d say, ‘I just don’t have the gay gene.’”

Boal consistently portrays Sarver as a loner, though one who wished to use his brains, not just his brawn. He quit the Rangers, an elite military unit, because he “never got over the feeling that he was just another glorified grunt….mindless groupthink.” He then “volunteered for EOD, where brains mattered more than biceps…” [10] His childhood immersion in a gun culture remained with him as an adult. Thus, Boal describes Sarver’s home in Wisconsin as filled with “rifles, shotguns and handguns” and the walls of that home covered with “animal mounts – a pheasant, a fox, a beaver and a deer head.” Boal goes on to describe how Sarver “goes off on a hunting trip, a spree that leads to his killing dozens of animals and storing enough meat to make him self-sufficient for a year.” [11]

As portrayed in the article, Sarver evokes the William James character in The Hurt Locker. Numerous details from the movie appear in the article. Like James in The Hurt Locker, Sarver

  • is stationed at Camp Victory; [12]
  • exhibits a sense of caring for a less competent team member; [13]
  • inspects a bomb crater at night in order to determine whether it is the result of a remotely detonated bomb, illuminating with his flashlight on the periphery of the explosion tree branches which are intact (with the same “orange, perfect and ripe” [14] as appears in the movie);
  • is enthusiastically praised by a colonel for disarming an IED (“Are you the crazy man in the bomb suit…Look at that hero. American’s finest. That is some good shit…I want a picture with this man.”); [15]
  • is the leader of the EOD unit which disarmed in Iraq the greatest number of IEDs;  [16] and
  • returns home at the end of the last 30 days of his tour to the boredom of daily living in the United States – “He sits on the couch, checks out his mounts, orders pizza and watches TV.” [17]

Other details in the article are also reminiscent of The Hurt Locker. Sarver “keeps recovered bomb parts in a box by his bed…[and] pictures of his son and his new girlfriend in his desk, under bits and pieces of IEDs.” [18] Boal also portrays how Sarver, like James, is emotionally distanced from his son. [19] Most striking, however, is Boal’s portrayal of Sarver as a soldier for whom “war is a drug”. 

  • “At 10 feet out, the point of no return, he [Sarver] encounters what he calls the Morbid Thrill. He feels a methlike surge of adrenaline.”
  • “When he removes his helmet he stands sweating, pale, his body shaking from the rush.”
  • “Then he would go down on the bomb alone and feel the Morbid Thrill. Then he’d come back uprange, glowing from the rush…” [20]

Boal quotes Sarver expressing what is implicit in the James character. “Believe it or not…I’m clearly really going to miss this shithole.” [21] Thus, Sarver, like James, eventually also returned to the war zone, signing his declaration in support of his lawsuit against Boal, Bigelow and others in Afghanistan.

In response to his receipt from Boal of an advance copy of the Playboy article, Sarver expressed to Boal his unhappiness with the article in light of, among other reasons,  its focus on Sarver, not EOD units generally. [22] As Boal himself remarked at the time, Sarver’s “initial reaction was less favorable” in comparison to Sarver’s “senior enlisted commander…in Sarver’s unit”. [23] Sarver claims, however, that he was told that the article had already been published by this time, [24] and supposedly the military’s legal department informed him that there was nothing that he could do “to stop the article”. [25] Sarver has also claimed that Boal at the same time told him that Boal “intended to make the Playboy article into a movie.” [26] Given Sarver’s background and his continued service in and longstanding commitment to the military, it is not difficult to conceive that he would do nothing. It is also not difficult to conceive how Boal’s conduct – his apparent expression of feeling safe only with Sarver, [27] his continual questioning of Sarver about his personal history – played to Sarver’s ego and loner mentality. Assuming that Sarver has accurately portrayed how events transpired, Sarver naively exposed himself to Boal apparently without considering that Boal might focus his article on Sarver and then did nothing to prevent the article’s publication, try to foreclose the possibility of the article becoming a movie or bar the movie’s release.

Bigelow supposedly began working on the screenplay with Boal in 2005, with production on The Hurt Locker beginning in 2007. [28] A BFA graduate of the San Francisco Art Institute, a recipient of an independent study scholarship from NYC’s Whitney Museum and an MFA graduate in film studies at Columbia University, Bigelow set out to make her eighth movie since 1982 on a relatively low budget through international financing. [29] After its festival showings at the Venice and Toronto film festivals and a public release in Italy in 2008, the movie was given on June 26, 2009, a limited, theatrical release in the United States, initially only in New York and Los Angeles. It received nearly universal, critically favorable reviews. Sarver, then stationed in New Jersey, somehow learned of the movie’s limited release in the US, [30] and he attended with others from the military an early New York screening. Boal later testified that Sarver “as well as his military friends, indicated to me, following the premiere of the Film, that they thoroughly enjoyed the Film and appreciated how the military was portrayed in the Film.” [31] In sharp contrast, one of those attending with Sarver later described the following exchange:

“After the movie, Mr. Boal and Ms. Bigelow sat themselves right in front of our group, and started to answer questions from the audience….Mr. Boal explained that the movie was based upon his experiences with a single EOD team… Mr. Boal and Ms. Bigelow were very relaxed while openly talking about the movie with the audience. During the question and answer session, our Garrison Commander asked Mr. Bigelow [sic] if he recognized the soldier seated (who was Sgt. Sarver) next to the Commander. In response, Mr. Boal answered that he recognized the soldier as Sgt. Sarver. Once Mr. Boal and Ms. Bigelow realized that Sgt. Sarver was in the audience, their carefree demeanor quickly changed as their answers became short and guarded, and they were in a hurry to leave the theatre.” [32]

A wider theatrical release of the movie followed on July 24, 2009, including at a theatre near where Sarver was then stationed in New Jersey. The DVD for the movie was released on January 12, 2010.

The lawsuit:
allegations and counter-allegations

Sarver filed his lawsuit in New Jersey federal court on March 2, 2010, and the complaint named as defendants The Hurt Locker, LLC, Mark Boal, Kathryn Bigelow, Summit Entertainment, Playboy Enterprises, Inc., and others. The complaint alleges seven claims: (1) right of publicity, (2) false light, (3) defamation (4) breach of contract, (5) intentional infliction of emotional distress, (6) actual/intentional fraud, and (7) constructive fraud/negligent misrepresentation. By way of background to these seven claims Sarver alleged:

“… ‘The Hurt Locker’ motion picture film and DVD are nothing more than the exploitation of a real life honorable, courageous, and long serving member of our country’s armed forces, by greedy multi-billion dollar ‘entertainment’ corporations, which engaged in the very simple – though unconscionable and unlawful – act of plagiarizing the name, likeness, mannerisms, habits, and intimate and personal life story of Plaintiff Staff Sgt. Jeffrey S. Sarver, for the sole commercial purpose of unjustly enriching the Defendants…” [33]

Sarver went on to explain how Boal and others came to acquire this information about him:

“To facilitate the immediate release of factually correct military operations related information, the Department of Defense promulgated the embedded media policy, whereby designated media representatives would be selected for long term, minimally restrictive access to US forces through ‘embedding’, whereby the media will actually live, work, and travel as part of a military unit…In exchange…the media agreed to be bound by the ‘Ground Rules’ applicable to the embedded media…One of the Ground Rules…restricts the type of information to be released/published by the media. For example, release/publication of a service member’s personal information is …limited to the member’s name and hometown only, and then only on condition the service member has provided consent.” [34]

While claiming that Boal “essentially exclusively followed and accompanied” Sarver and his unit, Sarver alleges that Boal “stated, represented to, and assured…[Sarver] he was working on a report/story about EOD operations in Iraq, in general.” [35] Sarver also alleges that Bigelow knew of Boal’s “upcoming embedment” as early as 2003 and “shared” with Boal how Boal could use the experiences of his embedment to write a screenplay for a “commercial movie”. [36] Expressing an obvious sense of betrayal in that Sarver “and his team fed, sheltered, personally protected, and ensured the safety of....” Boal [37] and claiming that he never knew that Boal intended to publish personal information about Sarver, “in which selected parts are even untrue and defamatory”, [38] Sarver alleges that he informed Boal that he “did not approve” of and requested that Boal’s  Playboy article, which focused “not on EOD in general, but [Sarver]…and his personal life,” not be published. [39] In essence, Sarver claims, however, that the “Defendants” told Sarver that it was too late, because the article had already been published. [40]

With the U.S. theatrical release nearly four years later of The Hurt Locker, Sarver’s complaint goes on to catalogue both the similarities of the William James character to Sarver and the defamatory manner in which the movie portrays Sarver through the William James character. In Sarver’s view, the movie portrays Sarver, as a “bad father”, a father who is “ashamed of his son”, a “messed up” soldier, “an unstable person” and a “soldier who violates military rules”. [41] According to Sarver, the release of the movie violated the military ground rules for the embedment of reporters, which barred the release of personal information, and Sarver as a “3rd party intended beneficiary under this contract” is entitled to enforce its remedies for that breach. [42] The movie also exposed Sarver to “an increased risk of harm or even death during future deployments in a war zone (further inciting enemies to hunt down this high profile bomb squad hero…).” [43]

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