2012, Jump Cut: A Review of Contemporary Media
Jump Cut, No. 54, fall 2012
The Hurt Locker litigation:
an adult’s story
by Robert Alpert
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.” [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 , 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 , 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: 
“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.  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  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. 
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.  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: 
“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…”  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.” 
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
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.”  Boal also portrays how Sarver, like James, is emotionally distanced from his son.  Most striking, however, is Boal’s portrayal of Sarver as a soldier for whom “war is a drug”.
Boal quotes Sarver expressing what is implicit in the James character. “Believe it or not…I’m clearly really going to miss this shithole.”  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.  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”.  Sarver claims, however, that he was told that the article had already been published by this time,  and supposedly the military’s legal department informed him that there was nothing that he could do “to stop the article”.  Sarver has also claimed that Boal at the same time told him that Boal “intended to make the Playboy article into a movie.”  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,  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.  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.  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,  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.”  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.” 
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…” 
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.” 
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.”  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”.  Expressing an obvious sense of betrayal in that Sarver “and his team fed, sheltered, personally protected, and ensured the safety of....” Boal  and claiming that he never knew that Boal intended to publish personal information about Sarver, “in which selected parts are even untrue and defamatory”,  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.  In essence, Sarver claims, however, that the “Defendants” told Sarver that it was too late, because the article had already been published. 
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”.  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.  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…).” 
In reporting on the filing of the lawsuit, The LA Times quoted Sarver’s attorney as saying at a press conference: "They're going to owe him a whole lot of money and recognition." In contrast, Boal denied that William James was modeled after Sarver. "Like a lot of soldiers, he identifies with the film, but the character I wrote is fictional. The film is a work of fiction inspired by many people's stories." He also denied Sarver’s claim that he, Sarver, had coined the term “hurt locker”. 
The lawsuit, in fact, contained the seeds for its own self-destruction. “Forum shopping”, namely selecting a courthouse where a jury will likely be sympathetic to a party’s claim or where the law is more favorable, is a time-honored practice. Notwithstanding that Boal had interviewed Sarver in Wisconsin and that subsequently in late 2011 Sarver had retired from the military to Wisconsin,  Sarver chose to file his lawsuit in New Jersey. Sarver’s connection to New Jersey was that he had been stationed in Dover, New Jersey, at the time that the movie was initially released.  As Sarver has acknowledged,  in contrast to New Jersey, the laws of California, where nearly all of the named defendants resided, was “a more amenable forum to their legal arguments” and “arguably more beneficial to them.”
Not surprisingly, therefore, the defendants immediately moved to dismiss or transfer Sarver’s New Jersey lawsuit to California. Opposing that motion, Sarver argued that the court had personal jurisdiction over the defendants, since the movie had been released theatrically, and hence Sarver had been harmed, in New Jersey.  However, in deciding whether to retain a lawsuit in a selected forum, a court considers both whether it has personal jurisdiction over the defendants as well as whether a selected forum is appropriate. In the context of a motion to transfer, a court looks to “convenience” factors, such as
Unfortunately for Sarver, while the New Jersey court had personal jurisdiction over the defendants, Sarver had alleged in his complaint that, while he had resided “at all times relevant” in Dover, New Jersey, he had resided at his new military posting in Clarksville, Tennessee since August 2009.  The New Jersey court seized upon that admission.  While a party’s selected forum is normally given deference in deciding whether the venue is appropriate, in this case Sarver had no present connection with New Jersey. It was not his “home forum.” In contrast, none of the defendants, documents or events relating to Sarver’s claims had any connection with New Jersey; to the contrary, nearly all were located in or connected with California. Thus, on November 18, 2010, the New Jersey court found that “convenience” dictated that Sarver’s selected forum not be given deference and transferred the case to California. Sarver’s “choice of New Jersey as a forum seems nothing less than arbitrary,” observed the court. 
Sarver’s position quickly began to unravel once his lawsuit was transferred to California. California had enacted in 1992 what is known as an anti-SLAPP law  that tilts heavily in favor of, and discourages lawsuits which might chill, free speech. First, it permits a defendant to strike a lawsuit involving conduct in furtherance of free speech on a matter of public interest, “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail.” Emphasis added. Second, while such a motion to strike is pending, all discovery is stayed. And third, a defendant who prevails in making such a motion “shall” recover its attorney’s fees from the plaintiff. 
Thus, the defendants soon moved to strike the complaint through three separate sets of attorneys – those of Summit Entertainment and other entities connected with the production and financing of The Hurt Locker, those of Bigelow and Boal, who had common counsel, and those of Playboy Enterprises.  The burden was now on Sarver to demonstrate a probability that he would prevail in the lawsuit. Sarver apparently sought informal discovery, including the depositions of Bigelow and Boal, and identified, in particular, the discovery of evidence needed supposedly in order to respond adequately to the disputed factual issues raised by the defendants in their motion.  Nevertheless, no discovery was apparently ever taken, notwithstanding a federal appellate court decision holding that California’s automatic stay of discovery “collides with” the analogous federal procedural rule.  Worse yet, the possibility of Sarver having to pay the defendants’ expenses now hung in the balance if he failed to defeat the defendants’ motion to strike.
While the lawyers exchanged “briefs” setting forth their legal arguments, it is the sworn statements exchanged by Boal and Sarver that highlight the sharp difference in perspective as to what had transpired. According to Boal, “Plaintiff  [Sarver] voluntarily participated in hours of interviews with me. I never informed Plaintiff that I would not utilize any details of his life in the Playboy Article, nor did he make any such request to me. Plaintiff was aware that I was writing an article about him.”  As to the William James character in The Hurt Locker, Boal reiterated what he had stated when interviewed by the LA Times:
“William James is a fictional character that is a product of my imagination. Certain elements of the character were inspired by different people that I have met throughout my life, including…members of the United States military…Indeed, prior to writing the screenplay for the Film, I interviewed in excess of 50 to 60 military personnel who were involved with explosive ordnance disposal.” 
Boal then catalogues 29 examples of ways in which the William James character differs from Sarver, mentioning, for example,
Boal also explained the origin of the term “hurt locker” as dating back to the Vietnam War and of the phrase “war is a drug” as originating from a 2002 book by The New York Times war correspondent Chris Hodges.  As to the claim that Boal had signed an agreement with the Department of Defense not to write the Playboy article or the film screenplay, Boal states: “I do not recall ever signing such an agreement and it would have made no sense for me to do so,” since the purpose of his embedment was “for the express purpose of writing an article about EOD teams.” 
Sarver’s recounting of events sharply differs. Advised by his command of Boal’s “upcoming 30-day embedment,”
“we were told to accommodate Mr. Boal since he was embedded for the purpose of reporting on/writing about, EOD operations in Iraq, in general. Because Mr. Boal was an embedded journalist/reporter it was my understanding Mr. Boal and our unit were subject to the government issued embedded media ‘ground rules’.” 
Sarver then attaches what he claimed is a copy of those ‘ground rules’.  While acknowledging that Boal took photographs and “audios” of Sarver and that Boal learned about the personal details of Sarver’s life through their daily, constant contact, Sarver claims that Boal personally assured Sarver that he would be writing about EOD operations in general and that had he, Sarver, known otherwise he would not have responded as he did to Boal’s questioning.  Sarver goes on to explain why Boal’s embedment was supposedly limited to Sarver’s unit:
“Mr. Boal commented to me that he did not feel safe around the other EOD teams/members, and that he did not feel safe going out on EOD missions…unless I was there.” 
“Throughout Mr. Boal’s embedment, my team and I sheltered, personally protected, and ensured the personal safety of Mr. Boal.” 
Sarver, in turn, catalogues 29 examples of how the movie represents a portrayal of Sarver.  Sarver points, for example, to
Sarver acknowledges that he did not invent the term “hurt locker” but rather claims that he explained, when questioned by Boal, its meaning to Boal in the same way that he explained the meaning of the phrase “war is a drug” (“at the time [Mr. Boal] was supplying our unit with alcoholic beverages”).  Moreover, notwithstanding the differences described by Boal between the movie character James and Sarver, Sarver claims that “colleagues, family members, and friends” recognized William James as Sarver. 
The sworn statements of Boal and Sarver differ or qualify one another on numerous, other points. For example:
Sarver’s legal claims and the law
Sarver’s principle grievance, as reflected in its being the first of the seven claims in his complaint, was that Boal, Bigelow and the producers of the film The Hurt Locker had unfairly taken (“misappropriated”) Sarver’s life story for their own commercial advantage. As such, they had violated his “right of publicity”. Significantly, a right of publicity claim arises under state, not federal, law and as such the right to and the scope of such a claim varies from state to state.  Typically such a claim is applied to celebrities whose name, likeness or other indicia of fame is taken without the celebrity’s consent and then used to market and sell commercial products. For example, courts have applied such a claim where a phrase associated with the TV talk show host Johnny Carson (“Here’s Johnny”) was used to sell toilets;  and where a robot, which evoked the appearance of game show hostess Vanna White, appeared on a set resembling a game show in order to sell Samsung electronics.  Nevertheless, a right of publicity claim can also be applied to the taking without consent of a non-celebrity’s name and likeness and the subsequent commercialization of that name and likeness. 
Ironically, Sarver’s status as a celebrity and the pubic recognition, if any, of him as the basis for the William James character had surely, in part, resulted from Boal’s Playboy article. Moreover, it is hard not to view his grievance of injury as real, not hypothetical, given that he remained in the military. As he stated in opposing the motion to strike his complaint, the film’s portrayal of him as William James had “essentially placed a bulls-eye on the back of my army uniform/bomb suit.” Soldiers “jokingly ask for my autograph.” He is “constantly harassed about the movie and article” for “selling my movie rights.” And he feels the distress of “how my son will react” as well as others’ reaction at his portrayal as “a reckless soldier and idiot.”  It is not that Sarver’s claim of injury is without infirmity.
Nevertheless, it is difficult also not to be sympathetic to his plight. A soldier, who has been awarded a Bronze Star for disarming more IEDs than any other soldier and is, as such, a genuine war hero, now sees himself as the basis or at least an inspiration for the central character in a movie with worldwide publicity not of his own choosing.
A movie, however, is neither a toilet nor a commercial advertisement for consumer products. While in 1915 the U.S. Supreme Court  had found that movies were a “business pure and simple” and “not… part of the press,” by 1952 the Court  had reversed itself, finding that Roberto Rossellini’s The Miracle could not be barred by a New York state agency based on a finding that the movie was “sacrilegious.” The court wrote:
“It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior….The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.”
Thus, the right of an individual to be free from unwanted commercialization must be balanced against the right of free speech where the “product,” in this case a movie, is an expressive medium. Indeed, with the passage of time courts have broadened the scope of potentially expressive media so as to include tee shirts, trading cards and most recently video games. As to this last,  the U.S. Supreme invalidated a California law which restricted the sale or rental of violent video games to minors.
“Like protected books, plays, and movies…video games communicate ideas – and even social messages – through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).”
If movies are an expressive medium, how is the right of free speech in that medium to be balanced against the right of an individual to be free from unwanted commercialization of his or her name or likeness? Only once has the U.S. Supreme Court addressed this issue.  Interpreting the state of Ohio’s right of publicity law, the U.S. Supreme Court balanced the two competing rights by analogizing to the U.S. Copyright Act, in particular, to the concept of “fair use” under that Act. The Copyright Act identifies four separate factors in deciding whether the use made of a copyrighted work is “fair”: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the taking relative to the copyrighted work as a whole, and (4) the effect of the use upon value of the copyrighted work.  In the case before the Supreme Court, a television station had broadcast in its entirety a “human cannonball act” without the performer’s consent. The Court, therefore, held that the right of the broadcaster to exercise its free speech was outweighed by the performer’s right not to have his entire act duplicated without payment. The Court reasoned:
“The Constitution [i.e. the First Amendment right to free speech] no more prevents a State from requiring respondent [the broadcaster] to compensate petitioner [the performer] for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner…The broadcast of a film of petitioner’s entire act poses a substantial threat to the economic value of that performance.”
In short, the amount of the taking in combination with the effect of that taking on the value of the act outweighed the broadcaster’s right of free speech. Interestingly, the Court observed in a footnote:
“Of course, this case does not involve a claim that respondent would be prevented by petitioner’s ‘right of publicity’ from staging or filming its own ‘human cannonball’ act.”
California’s right of publicity statute reads as follows: 
“Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling…products…without such person’s prior consent…shall be liable for any damages sustained by the person…injured as a result thereof.”
The law on its face makes no distinction between celebrities and non-celebrities.  Faced in 2001 with a case in which free speech conflicted with a right of publicity claim, the California Supreme Court  adopted a “transformative” test in determining the balance to be struck between the rights of publicity and free speech. The U.S. Supreme Court had already adopted a “transformative” test in characterizing “the purpose and character” fair use factor under the U.S. Copyright Act.  The issue, reasoned the U.S. Supreme Court, is
“whether the new work…merely ‘supersede[s] the objects’ of the original creation…or instead adds something new, with a further purpose or different character altering the first with new expression, meaning or message”.
The California Supreme Court, however, formulated its own definition of what constitutes a “transformative” work, disregarding all of the other “fair use” factors.
“We ask…whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness…The inquiry is in a sense more quantitative than qualitative, asking whether the literal and imitative or the creative elements predominate…In sum,…the artist….may raise as an affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame…”
While observing that Andy Warhol’s silkscreens of celebrities, such as Marilyn Monroe and Elvis Presley, are transformative in that they are “a form of ironic social comment on the dehumanization of celebrity itself,” it held in the case before it that charcoal drawings which literally depicted the Three Stooges were not.
Applying this same test two years later, the California Supreme Court  found “transformative” comic book images which were not literal depictions of the plaintiffs but instead images “half-human and half-worm – in a larger story which is itself quite expressive.” The court found irrelevant evidence that the publisher of the comic books was trading on plaintiffs’ reputation in order to market its comic books, since the comic books themselves were “transformative.”
Other California courts applying this “transformative” test have found instances of both transformative and non-transformative uses. On the one hand, a space-themed video game which included a character who resembled the lead singer to a musical group but whose physique, hair style, costume and dance moves differed was found “transformative.”  On the other hand, examples of “non-transformative” uses have included the following:
Interestingly, those courts finding the uses non-transformative commented upon the context in which the celebrity was placed as being the same as that in which the celebrity normally appears. For example, the videogame placed the quarterback in the context of a football videogame.
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,  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:
“…[T]he alleged portrayal of Plaintiff in the movie is connected to an issue of public interest, given Plaintiff's service in the Iraq war, the importance of EOD technicians..., the high-level of danger of Plaintiff's duties, and Plaintiff's claims that he disarmed more IEDs than any single team...”
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
“Sarver was not placed in a setting different….[but rather t]he Will James (Jeremy Renner) character was simply walking in Jeffrey Sarver’s shoes”. 
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:
“It was a disservice to all of those other soldiers for Sgt. Sarver to claim that he was the only soldier that was the basis for the hero of the film. I am glad that the Court has decided to dismiss the lawsuit.” 
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
“[a]ny commercial aspects are ‘inextricably entwined’ with expressive elements, and so they cannot be separated out ‘from the fully protected whole.’” 
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:
“While the Court finds some aspects of [defendant’s] business practices troubling and perhaps unethical, it has been unable to find a legal remedy for conduct that may offend generally accepted standards of business. ‘[Ethical] obligations that exist but cannot be enforced are ghosts that are seen in the law but are elusive to grasp.’” 
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:
“[T]he drug-induced state in which she [Bigelow] takes pleasure (“war is a drug”), so reminiscent of the 60s, offers her and her characters the only escape from the boredom and constraints of social norms. The sometimes emotional schizophrenia of her films, the psychosis of her characters, such as the self-aware Sergeant William James, display her continued dissatisfaction with those values, even as she acknowledges that no others can be found in her world. “
Bigelow, as cultural critic, is surely attuned to, and responsible for, seeking to make those values which morally satisfy present in her own world.
1. http://www.ejumpcut.org/archive/jc52.2010/alpertHurtlocker/index.html. [return to text]
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?”
“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.
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.
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/PubArticleFriendlyNY.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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