JUMP CUT
A REVIEW OF CONTEMPORARY MEDIA

 

 

Notes

1. http://www.ejumpcut.org/archive/jc52.2010/
alpertHurtlocker/index.html
. [return to page 1 of essay]

2. Declaration of Sgt. Jeffrey S. Sarver, sworn to on March 15, 2011 (“Sarver Dec”). ¶This declaration and other documents from the lawsuit identified in this article were retrieved from the court dockets.

3. The budget for The Hurt Locker was apparently about $15 million, and the film grossed about $40 million through its theatrical release with an additional $30 million in DVD sales, as of early to mid-2010. 
http://en.wikipedia.org/wiki/The_Hurt_Locker
, which was retrieved on May 14, 2012.
In contrast, it has been reported that the production budget of Avatar was about $300 and its theatrical gross revenue as approximately $2.7 billion. http://en.wikipedia.org/wiki/Avatar_%282009_film%29 ,
which was retrieved on May 14, 2012. 

4. These excerpts from the acceptance speeches of Bigelow and Boal can be found on The Academy of Motion Picture Arts and Sciences website. http://www.oscars.org/awards/academyawards/82/nominees.html,
which was retrieved on May 14, 2012.

5. A copy of that decision has been reproduced in The Hollywood Reporter of October 13, 2011, at the following site:
http://www.hollywoodreporter.com/thr-esq/
read-judges-decision-hurt-locker-248276
,
which was retrieved on May 14. 2012. 

6. A copy of this policy and the rules for embedding the media with US military units was annexed as Exhibit A to Sarver’s declaration sworn to on March 15, 2011. The defendants objected to its acceptance as evidence on numerous grounds. The court sustained that objection and declined to consider the rules on the ground that Sarver had failed to properly lay the foundation for the copy that he had filed. A copy of the rules as attached to Sarver’s declaration may be found at
http://www.defense.gov/news/feb2003/
d20030228pag.pdf
, which was retrieved on May 14, 2012.

7. Declaration of Mark Boal, sworn to on March 2, 2011 (“Boal Dec.”), ¶ 4; Sarver Dec., ¶ 23.

8. This same article was apparently re-published in 2006 in a condensed version for Reader’s Digest. Boal states that the editors at Reader’s Digest informed him that Sarver “participated...with respect to the publication.” Boal Dec., ¶ 6. While Sarver acknowledges that he worked with the editors at Reader’s Digest, in contrast, he claims that he tried to remove certain portions of the article and was told that the article had been sold “as is” by Boal so that there was “not much” Sarver could do. Sarver Dec., ¶ 32

9. The Playboy article was reproduced as an 11 page Exhibit A to the Complaint (“Playboy article”). The description of Sarver’s childhood may be found at Playboy article, 6.

10. Playboy article, 7.

11. Playboy article, 11.

12. Playboy article, 2.   

13. For example, the article quotes the following exchange between Sarver and EOD team member Williams, thereby conveying Sarver’s greater competence relative to Williams but also Sarver’s empathy for Williams’ shortcomings:

“Williams, where’s the firing device?” Sarver asked.
“I left it back at the IEDs,” Williams replied.
“Did you cut the wires?”
“Did you cut them? Did you cut them, Williams?”
“Yeah.”
“Did you segregate them?”
“Yeah. But the mortars are getting really close.”
“Why didn’t you put the fucking charge on them? Now we have to go back and blow them up!"

The two men were forced to back to the IEDs in order to put a charge on the explosives and detonate them safely… Sarver never held the incident against him. In fact, as they were driving back to Baghdad, Sarver told the younger man that he trusted him and that there was “no tech…he’d rather have at his back.”

Playboy article, 6.

14. Playboy article, 10.

15. Playboy article, 9. The article underscores, however, the difference between Sarver and the colonel in that the colonel later comments, “You wouldn’t catch me going down on no fucking bombs”. In contrast, the movie emphasizes their similarity in that the colonel is seemingly responsible for the cold-blooded killing of a captured Iraqi insurgent.

16. Playboy article, 10.

17. Playboy article, 11.

18. Playboy article, 9.

19. Playboy article, 11 (describing how Sarver’s hunting trip results in his not seeing his son “right away” and how he also will miss the birth of his child to his new girlfriend).

20. Playboy article, 4 and 8.

21. Playboy article, 10.

22. Sarver Dec., ¶ 26.

23. Sarver Dec., Exh. B; and Boal Dec., ¶ 5.

24.Sarver Dec., ¶  28.

25. Sarver Dec., ¶  27.

26. Sarver Dec., ¶ 29.

27. Sarver Dec., ¶  15.

28. http://en.wikipedia.org/wiki/The_Hurt_Locker - Writing ,
which was retrieved on May 14, 2012.  2011.

29. See The New York Times, December 6, 2011, at A3 (“…[T]he Oscar for best picture, for three consecutive years, has gone to films - [including] “The Hurt Locker” – that used globe-spanning financial networks to create stories aimed at global audiences.”.) 

30. Like nearly everything else in the lawsuit, how Sarver came to attend the film’s screening was disputed. Boal claims that he invited Sarver and others in the military to “advance screenings of the Film.” Boal Dec., ¶ 12. Sarver, however, claims that he heard about the premiere of The Hurt Locker “through several service members from our garrison” where he was then stationed as well as is insistent that “Mr. Boal never invited me to any advance screening of the film” and that he and others from his garrison attended a premiere showing on their own. Sarver Dec., ¶¶  35 and 36.

31. Boal Dec., ¶ 12.

32. Supplemental Declaration of First Sgt. Paul Wilcock sworn to on March 18, 2011. The paragraph numbers from this declaration have been omitted from the quoted text.

33. Plaintiff’s Complaint and Demand for Jury Trial filed on March 2, 2010 in the United States District Court for the District of New Jersey, Case 2:10-cv-09034-JHN-JC (“Complaint”), ¶  23.

34. Complaint, ¶¶   29-31. 

35. Complaint ¶ ¶ 42 and 43.

36. Complaint ¶ 40.

37. Complaint ¶ 45.

38. Complaint ¶ 48.

39. Complaint ¶ ¶ 52 – 54.

40. Complaint ¶ 55.

41. Complaint ¶ 79.

42. Complaint ¶ 86.

43. Complaint ¶ 93.

44. LA Times, March 4, 2010,
http://articles.latimes.com/2010/mar/04/
entertainment/la-et-hurt4-2010mar04
, which was retrieved on May 14, 2012.  [return to page 2]

45. Declaration of Jeffrey S. Sarver sworn to on December 20, 2011, in Wisconsin (“Sarver 2011 Dec.”), ¶ ¶ 2 and 3.

46. Complaint ¶ ¶ 1 and 2; Sarver Dec., ¶ ¶ 33, 34, and 38.

47. Plaintiff’s Amended Response in Opposition to Defendants’ Motion to Dismiss, filed on July 9, 2010, at 17.

48. Sarver relied heavily on a US Supreme Court decision, Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984), in which Hustler Magazine had unsuccessfully sought to dismiss for lack of personal jurisdiction a case brought by a New York resident in New Hampshire solely because the law of New Hampshire had a longer statute of limitations (six years) and, therefore, was one of the states that did not bar the plaintiff’s libel claim. After observing that Hustler Magazine clearly published its magazines in New Hampshire and that the plaintiff had forum shopped in order to find the state with the longest statute of limitations, the Court declined to dismiss the lawsuit. Forum shopping, according to the Supreme Court, was a perfectly legitimate litigation strategy.  Keeton, however, never addressed the issue of whether venue in New Hampshire was appropriate and, therefore, whether the lawsuit should be transferred to another, more convenient forum.

49. Complaint ¶ ¶ 1 and 2.

50. Opinion dated November 18, 2010 (“Transfer Order”), at 8. Sarver stated in a later declaration that he was stationed in New Jersey when the movie was theatrically released in New Jersey but was transferred in September 2009 to Fort Campbell in Tennessee. Sarver Dec., ¶ 38. By the time he had filed his lawsuit in New Jersey in March 2010 he clearly had no connection to New Jersey.

51. Transfer Order at 8. The California court later weighed in on the appropriate forum for Sarver to have asserted as his “home forum”. It observed that military personnel are not deemed to reside where they are stationed. “They retain the domicile they had at the time of entry into the services.” Opinion Granting Defendants’ Motion to Strike dated October 13, 2011 at fn. 4. What then was the domicile of Sarver, a 20-year career soldier, when he brought his lawsuit in March 2010?  Wisconsin, the state to which he retired in late 2011?

52. Ca. Code of Civ. Proc., § 425.16. SLAPP is an acronym for Strategic Lawsuits Against Public Participation.  Other states have similar statutes, but they differ in their scope. For example, the anti-SLAPP law in Tennessee, where Sarver was later posted, confers immunity only on the communications to any governmental agency of information about another person “in connection with a public or governmental issue” and “regarding a matter of concern to that agency…” Tennessee Code, § 4-21-1003.

53. In contrast, a prevailing plaintiff on an anti-SLAPP motion to strike may only recover its fees if the motion to strike was “frivolous” or “solely intended to cause unnecessary delay.” Interestingly, California’s right of publicity statute itself provides that the “prevailing party” shall be entitled to an award of its fees, without differentiating between a prevailing plaintiff and a prevailing defendant. Ca. Civ. Code § 3344(a).

54. By stipulation between Sarver and Playboy, Sarver eventually dismissed without prejudice his claims against Playboy. Stipulation of Dismissal regarding Defendant Playboy Enterprises, Inc. filed on February 22, 2011.

55. Declaration of Todd J. Weglarz sworn to on March 14, 2011.

56. While California’s anti-SLAPP law mandates a stay of discovery absent a showing of  “good cause”, Ca. Code of Civ. Proc. § 425.16(g), the California federal court of appeals in Metabolife International, Inc. v. Wornick, 264 F.2d 832 (9th Cir. 2001) held that the California anti-SLAPP law’s automatic stay “collides with” the federal rule in connection with motions for summary judgment, where the taking of discovery is the “rule,” not the “exception,” in response to such an early, potentially dispositive motion. On that basis, the appellate court remanded the case before it to the trial court and directed that the trial court permit discovery. Nevertheless, federal trial courts in California have seemingly struggled to understand how to apply Metabolife. Compare, e.g. Aeroplatae Corp. v. Arch Insurance Co., 2006 WL 3257487 (E.D. Ca. 2006)(deferring an anti-SLAPP motion to strike in order to permit the plaintiff to take discovery, where the plaintiff has had no opportunity to do so), with, New.net v. Lavasoft, 356 F.Supp.2d 1090 (C.D. Ca. 2004)(granting a motion to strike since plaintiff failed either to show “good cause” or to identify with sufficient particularity the discovery “essential” to oppose the defendant’s motion). Thus, Sarver stated to the court that he was entitled to take discovery, while the defendants argued that an automatic stay applied. Joint Rule 26(f) Report filed on February 24, 2011 (“Joint Rule 26(f) Report”).

57. Is it a difference in the style of their respective lawyers or is it an effort by Boal to distance himself from Sarver that Boal’s declaration consistently refers to Sarver as “plaintiff”, his title as a party in the lawsuit, and not as Sarver, let alone Sgt. Sarver? In contrast, Boal consistently refers to Boal in his sworn declaration to “Mr. Boal”. 

58. Boal Dec., ¶ 4.

59. Boal Dec., ¶ 7.

60. Boal Dec., ¶ 8.

61. Boal Dec., ¶ ¶ 9 and 10.

62. Boal Dec., ¶ 13.

63. Sarver Dec., ¶ 12.

64. Sarver Dec., Exh. A.

65. Sarver Dec., ¶ ¶ 13, 19 and 20.

66. Sarver Dec., ¶  15.

67. Sarver Dec., ¶ 17.

68. Sarver Dec., ¶ 44.

69. Sarver Dec., ¶ 44c. Sarver quotes Renner as stating on the YouTube video that his characterization resulted from being shown “a guy, there’s one guy that they knew [who] was like James…” Sarver claims that that guy is him. The YouTube video, entitled NYC Comic Con 2009, may be found at the following site:
http://www.youtube.com/watch?v=De4bysqDv0Y,
which was retrieved on May 14, 2012. 

70. Sarver Dec., ¶  44.

71. Sarver Dec., ¶ ¶ 44a and b.

72. Sarver Dec., ¶ 42.

73. Boal Dec., ¶ 3; Sarver Dec., ¶ 14.  

74. Boal Dec., ¶ 8h; Sarver Dec., ¶  44p.

75. Boal Dec., ¶¶  8j and k; Sarver Dec., ¶¶  44 r and s.

76. Boal Dec., ¶ 8m; Sarver Dec., ¶ 44u.

77. Boal Dec., ¶ 8q; Sarver Dec., ¶ 44v.

78. Boal Dec., ¶ 8aa; Sarver Dec., ¶¶  44x and aa.

79. Historically the right of publicity is one of four types of “privacy” injuries: (1) intrusion upon a person’s seclusion or private affairs, (2) the disclosure of embarrassing private facts about a person, (3) publicity which places a person in a false light, and (4) the appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. See e.g. William Prosser, Privacy, 48 Ca. Law Rptr. 383 (1960). The individual states in the U.S. have slowly come to adopt in varying degrees these types of claims. Nevertheless, the individual states have not done so uniformly. For example, with respect to the fourth claim, the right of publicity, some states limit such a claim by the express terms of a legislative statute. In other states there is both a judge-made and a statutory right of publicity, with the requirements for the two differing. Some states have yet to recognize a right of publicity. Still further dividing the laws in different states is whether the right of publicity survives, and for how long, the death of the individual whose right of publicity has supposedly been misappropriated.

Wisconsin, where Boal interviewed Sarver and where Sarver now apparently resides, has enacted a “right of privacy” statute, Wisc. Stat. § 995.50. It defines an “invasion of privacy” as including the following:

“(a) Intrusion upon the privacy of another of a nature highly offensive….in a place that a reasonable person would consider private….(b) The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent…(c) Publicity given to a matter concerning the private life of another, of a kind highly offensive….if the defendant has acted…. unreasonably…as to whether there was a legitimate public interest….”

The statute further provides that “[o]ne whose privacy is unreasonably invaded”  is entitled to equitable relief. Emphasis added.  In contrast to California’s right of publicity and anti-SLAPP laws, a prevailing plaintiff under Wisconsin’s right of privacy statute is entitled to its reasonable attorney’s fees, while the defendant is entitled to such an award only upon a showing that the action brought was “frivolous”.

Wisconsin appears not to have enacted an anti-SLAPP law.
http://www.anti-slapp.org/your-states-
free-speech-protection/
, which was retrieved on May 14, 2012.

80. Carson v. Here’s Johnny Portable Toilets, Inc., 218 USPQ 1 (6th Cir. 1983).

81. White v. Samsung Electronics America Inc., 23 USPQ2d 1583 (9th Cir. 1992).

82. For example, a New York the right of publicity claim is defined by a “right of privacy” statute. That statute reads: “Any person whose name, portrait, picture or voice is used  within  this  state  for  advertising purposes  or for the purposes of trade without the written consent first obtained... may  maintain  an …action.” NY Civil Rights Law, § 51.

83. Sarver Dec., ¶  46.

84. Mutual Film Corp. v. Industrial Comm’n, 236 U.S. 230 (1915).

85. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).

86. Brown v. Entertainment Merchants Association, 564 U.S. __(2011).

87. Zacchini v. Scripps-Howard Broadcasting Co., 25 USPQ 741 (1977).

88. 17 U.S.C. § 107.

89. Ca. Civ. Code § 3344. California also recognizes a “common law” right of publicity, that is, a judicially created right. The elements required to establish a statutory right of publicity have been defined as follows: “(1) a ‘knowing’ use, (2) for purposes of advertising, and (3) a direct connection between the use and the commercial purpose”. In contrast, a “common law” claim requires proof of the following: “’ (1) the defendant’s use of the plaintiff’s identity; (3) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. ‘” Newcombe v. Adolphe Coors Co., 48 USPQ2d 1190 (9th Cir. 1998).

90. Fraley v. Facebook Inc., 101 USPQ2d 1348 (N.D. Ca. 2011)(unauthorized use of the name and likeness of an individual who has clicked the “Like” button to advertise on Facebook held actionable and injury found in that Facebook thereby gained additional profit from selling these “Sponsored Stories” as compared to the  sale of its regular advertisements); Cohen v. Facebook, Inc., 100 USPQ2d 1767 (N.D. Ca. 2011) (finding that a valid claim under California’s right of publicity law has been stated by a non-celebrity for Facebook’s unauthorized use of a subscriber’s name and profile face to promote Facebook’s Friend Finder service, subject to a showing of the subscriber’s injury).

91. Comedy III Productions, Inc. v. Gary Saderup, 58 USPQ2d 1823 (Ca. Sup. Ct. 2001).

92. Campbell v. Acuff-Rose Music, Inc., 29 USPQ2d 1961 (1994).

93. Winter v DC Comics, 66 USPQ2d 1954 (Ca. Sup. Ct. 2003).

94. Kirby v Sega of America, Inc., 81 USPQ2d 1172 (Ca. Ct. App.  2006).

95. Hilton v. Hallmark Cards, 96 USPQ2d 1177 (9th Cir. 2010).

96. Keller v Electronic Arts, 94 USPQ2d 1130 (N.D. Ca. 2010). Keller is currently on appeal to the Court of Appeals for the Ninth Circuit, which will hear Sarver’s appeal. Given the timing of the respective appeals, a decision in Keller will likely issue prior to a decision in Sarver.

97. No Doubt v. Activision Publishing, Inc., 98 USPQ2d 1728 (Ca. Ct. App. 2011).

98. Nominated by President Obama, Judge Nguyen “is the first Vietnamese-American woman to serve the federal bench…[She] was born in South Vietnam. She fled from the country with her family in 1975, after the fall of the government “  She was nominated by President Obama to be elevated to the Federal Court of Appeals for the Ninth Circuit, and her nomination was confirmed by the US Senate in early May 2012. 
http://judgepedia.org/index.php/
Jacqueline_Nguyen
, which was retrieved on May 14, 2012. 

99. Order/Referral to ADR Program, dated February 25, 2011. [return to page 3]

100. According to Sarver, there were “[s]ome settlement discussions” both shortly prior to and after the filing of the lawsuit but the defendants were not “interested in owning up to their responsibilities owed to Sgt. Sarver…” According to the defendants, the parties would parties would participate in settlement discussions before a private mediator but the defendants did not believe “that mediation will be effective” until after the anti-SLAPP motions were decided and that “mediation will be more effective” once the defendants had had the opportunity to depose Sarver. Joint Rule 26(f) Report.

101. Tentative Ruling dated August 4, 2011, annexed as Exhibit A to the Declaration of Todd J. Weglarz sworn to on December 19, 2011. The Court of Appeals for the Ninth Circuit has since held in a non-precedential decision that “consent” can be implied from a celebrity’s  conduct. Jones v. Corbis Corporation, No. 11-56082 (July 16, 2012).  It is difficult, however, to equate Sarver’s supposed consent to the publication of the Playboy article to the later production and release of the movie. Admittedly more problematic is that if Boal did indeed inform Sarver of Boal’s intent to produce a movie based on that article, did Sarver’s failure to object or take steps to bar its production constitute either an implicit consent or an acquiescence in that production?

102. Much of the argument focused on whether the court had correctly declined to strike the right of publicity claim. In asking the court not to strike the claim, as it declined to do in its tentative ruling, Sarver framed the argument as follows: “If you read the [Playboy] article and if you watch that movie, Will James is predominantly and is basically the main character in that movie and that movie is nothing more…than a movie about the life of Sergeant Sarver…” Summit Entertainment, however, framed the issue as follows: “….I don’t see from the tentative [ruling] that the court engaged in an evaluation of the work as a whole at all as opposed to a comparison of the plaintiff to the fictional character….”  Transcript of Proceedings on August 8, 2011.

103. Order Granting Defendants’ Motion to Strike dated October 13, 2011 (“Opinion”).

104. Opinion at 4-5. As previously noted, a right of publicity claim is a state-created right and, as such, differs from state to state. Moreover, courts have also differed in the test to be applied in balancing the rights of publicity and free speech, see e.g. Rogers v. Grimaldi, 10 USPQ2d 1825 (2d Cir. 1989) (applying a test which looks to whether the celebrity’s name as applied to the title of a movie is “related” to the content of the movie and not a disguised advertisement or commercial product). Thus, the California’s court’s decision about which law to apply was obviously not without significance. Indeed, the decision as to what law to apply (“conflicts of law”) itself differs between states. What state law would have been applied had Sarver filed his lawsuit in a state with which he had a sufficient connection to the dispute such that the court did not transfer the lawsuit to California? Would that court then have applied that state’s law and, if so, what would have been the scope of that state’s right of publicity law? Would that state have had an anti-SLAPP law and, if so, would it have differed from California’s anti-SLAPP law? Would the court have permitted discovery to go forward?  Would the court have balanced the rights of publicity and free speech in the same way or would the court on a motion to strike, dismiss or for summary judgment reached a different result on the merits of Sarver’s claims? 

105. Opinion at 12. It is one of the curiosities of this and other federal court cases why federal courts have adopted wholesale the California Supreme Court’s articulation of the test to be applied in balancing free speech against a right of publicity claim. Free speech is guaranteed under the First Amendment of the U.S. Constitution and hence the views of federal, not state, courts should control in determining the appropriate balance to be struck. At least one federal court has expressly acknowledged that state court decisions are not binding on federal courts in determining how a state right of publicity claim is to be balanced against a federal constitutional right of free speech defense. Hart v. Electronic Art, Inc., 101 USPQ 2d 1561 (D.N.J. 2011). Nevertheless, even that court cited to and applied the “transformative” test formulated by California’s Supreme Court. The Court of Appeals for the Ninth Circuit, where Sarver’s appeal is pending, has observed that it may not be bound by California’s “transformative” test. Thus, it has said that it has not yet decided

“whether there is a First Amendment defense to misappropriation of the right of publicity distinct from the defense the California Supreme Court has articulated….[and] whether the First Amendment furnishes a defense to misappropriation of publicity that is broader than the transformative use or public interest defenses.”

Hilton v. Hallmark Cards, 96 USPQ2d 1177 (9th Cir. 2010).

106. See Civil  Appeals Docketing Statement dated November 10, 2011, Sarver v. Chartier et al, No. 11-56986 (9th Cir.).

107. Sarver v. Chartier et al, No. 11-56986 (9th Cir.), Order dated April 13, 2012.  

108. Sarver v. Chartier et al, No. 11-56986 (9th Cir.), Notice of Joint Brief filed on July 24, 2012. Following the filing of the parties’ briefs, there should be oral argument followed by a decision several months later.  

109. Appellant’s Consolidated Opening Brief on Appeal filed on July 2, 2012. Sarver made explicit what is implicit in this argument when he later argued in his reply brief: "..........[T]he transformative use test focuses on depictions of an individual and not the work as a whole." Appellant's Consolidated Reply Brief filed on September 10, 2012.

110. Appellees’ Joint Answering Brief filed on August 22, 2012.  

111. The Hollywood Reporter of October 13, 2010.
http://www.hollywoodreporter.com/news/
hurt-locker-lawsuit-dismissed-mark-248269
,
which was retrieved on May 14, 2012.

112. Motion for Leave to File Amici Curiae Brief and Amici Curiae Brief of the Motion Picture Association of America, Inc. and Entertainment Merchants Association in Support of Defendants/Appellees filed on August 29, 2012 (“MPAA Motion” and “MPAA Brief”, respectively). The MPAA represents Paramount Pictures, Sony Entertainment, Twentieth Century Fox, Universal City Studios, Walt Disney and Warner Bros. The EMA represents “approximately 50,000 retain outlets around the world that sell and/or rent DVDs, computer and console video games, and digitally distributed versions of these products.” MPAA Motion at 3.

113. The “unrelated to the work” test advocated by the MPAA and the EMA is the test enunciated in Rogers v. Grimaldi, 10 USPQ2d 1825 (2d Cir. 1989).  The MPAA and the EMA also cite to the Restatement (Third) of Unfair Competition, § 46 which finds liability only where there has been an appropriation of the “commercial value” of a person’s name or likeness “for purposes of trade”. Rogers involved the celebrity Ginger Rogers, and the Restatement speaks in terms of the person’s “commercial value”. How do Rogers and the Restatement, however, apply in the case of a non-celebrity whose name or likeness has no “commercial value”?

114. Hoffman v Capital Cities/ABC, Inc., 59 USPQ2d 1363 (9th Cir. 2001) (while the image of the actor Dustin Hoffman was taken from the movie Tootsie where he wears a red sequined gown and was superimposed instead on a Ralph Lauren designer gown, the First Amendment barred a right of publicity claim where the altered image appeared in the context of an article entitled “Grand Illusions” which depicted numerous, unaltered images of Hoffman as well as images of numerous celebrities similarly altered who wear famous designer clothing and where the article emphasizes how these celebrity images have been altered through computer software). 

115. Even prior to directing her first commercially released film, The Loveless (1982), Bigelow’s sympathy for the outsider to social norms is reflected in her apparent participation in or around 1979 (while still a film student at Columbia University) in the last interview of Nicholas Ray, Hollywood’s classic director of outsiders, such as Humphrey Bogart in In a Lonely Place (1950) and James Dean in Rebel Without a Cause (1955).
http://www.lafuriaumana.it/index.php/archive/52
-la-furia-umana-nd5-summer-2010/217-nicholas-ray
-the-last-interview-with-kathryn-bigelow-and-fatima-parsons
,
which was retrieved on May 14, 20112.  The interviewers of Ray questioned him about Rebel without a Cause and the issue of conformity.

116. The MPAA and the EMA, in fact, make that very argument in their brief, namely that filmmakers should not be required to seek such consents, which would result in the impossible of task of obtaining releases from anyone who might claim that his or her identity was misappropriated. MPAA Brief at 13.

117. For example, the traditional limitation on free speech as to its time, place and manner has continued to be applied to the Occupy Wall Street and other such protests. In contrast, the US Supreme Court has recently taken an expansive view of the First Amendment in finding the right to spend money as itself an expression of free speech. In Citizens United v. Federal Election Commission, 588 U.S. ___ , 130 S.Ct. 876 (2010) the court held that a federal law, which placed limits on the amount of money which corporations could spend on political campaigns, ran afoul of the First Amendment and hence invalidated the law. It dismissed the argument that the law, which placed limitations on corporate expenditures, furthered a sufficient governmental interest in seeking to avoid political influence and corruption through unlimited expenditures.  Ironically, the traditional limitation on time, place and manner was applied to persons who were demonstrating in New York to protest the Citizens Union decision. Wolfman v. French, 12-civ-0443-LAK, as reported in the New York Law Journal of January 20, 2012,
http://www.newyorklawjournal.com/PubArticleFriendly
NY.jsp?id=1202539007592&slreturn=1
, which was retrieved on May 10, 2012.

The Citizens Union decision has generated a great deal of controversy. For example, the Supreme Court of the state of  Montana effectively declined to follow that decision in applying Montana’s law which limits political contributions. The US Supreme Court in a 5-4 split opinion reversed that decision, holding that Montana’s law was invalid for the reasons articulated in the Citizens Union decision.  In contrast, the dissent argued that the Court should either reconsider the holding of Citizens Union or consider how to apply Citizens Union given the factual record before the Montana Supreme Court of possible corruption resulting from corporate expenditures. American Tradition Partnership, Inc. v. Bullock, 567 US __ (1912).

118. The defendants’ requests for reimbursement of their expenses can be found in the three separate motions for an award of attorney’s fees filed on October 27, 2011, by defendant Summit, defendants Boal and Bigelow and by the remaining defendants.  “Sources tell [The Hollywood Reporter] that at least some of the Hurt Locker defendants would have agreed to drop their requests for attorney fees in exchange for Sarver dropping the matter, but that he has chosen to fight.”  The Hollywood Reporter of December 8, 2011,
http://www.hollywoodreporter.com/thr-esq/hurt-
locker-lawsuit-jeremy-renner-jeffrey-sarver-271605
,  which was retrieved on June 4, 2012. 

119. Order Granting in part Defendants’ Motions for Attorneys’ Fees dated December 8, 2011. That figure will likely rise if the appellate court affirms the trial court, including its decision awarding attorney’s fees. The defendants would then presumably seek recovery of their fees in successfully defending against Sarver’s appeal. 

120. Sarver joined the military on October 7, 1991, and retired on October 31, 2011. Sarver 2011 Dec., ¶ 2.

121. Order Denying Plaintiff’s Motion for Stay of Execution and Waiver of Bond Pending Appeal dated February 2, 2012. Such a posting, of course, would normally have required that Sarver possess some asset which the bond company could secure as collateral.

122. Sarver 2011 Dec., ¶ 5.  Sarver has acknowledged that the defendants have, in fact, to date made no effort to enforce those judgments. Appellant’s Consolidated Opening Brief on Appeal filed on July 2, 2012

123. Ascentive, LLC v. Opinion Corp., 10-civ-04433-ILG (E.D.N.Y. 2011), quoting from a US Supreme Court opinion issued in 1922 and written by Justice Oliver Wendell Holmes, which opinion, in turn, cited to an 1868 US Supreme Court opinion.

124. Ironically, Bigelow and Boal may themselves have recently experienced in the context of their next film, which is about the hunt for Osama Bin Laden, what it means to be engaged in a contest with someone of far greater capital. The Department of Justice initiated an investigation into whether Bigelow and Boal improperly obtained access to confidential documents during the course of preparing their film. The NY Times, January 7, 2012 at C1.
http://www.nytimes.com/2012/01/07/movies/film-on-
bin-laden-hunt-leads-to-pentagon-investigation.html
, which was retrieved on May 10, 2012. 

125. DH Lawrence’s Studies in Classic American Literature, chapter 1, which may be found at
http://xroads.virginia.edu/~hyper/
LAWRENCE/dhlch01.htm
, which was retrieved on May 14, 2012.


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