The Hurt Locker litigation:
an adult’s story—part 2

by Robert Alpert

The U.S. Supreme Court famously declared in Marbury v. Madison (1803) that the “[g]overnment of the United States has been emphatically termed a government of laws, and not of men.”[1][open endnotes in new window] It also, however, observed that it “is emphatically the province and duty of the Judicial Department [that is, the courts] to say what the law is.” Thus, while holding that the U.S. Constitution overrides any other law, the Court also held that the U.S. Supreme Court is the final arbiter of what the U.S. Constitution means, thereby, not incidentally, granting to itself the final say over the other two branches of government, Congress and the President, as to the interpretation of this supreme law. Tellingly, however, the Supreme Court in Marbury also famously observed, “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.” Thus, government “will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” Now, over 200 years later this same Court effectively offered no remedy in affirming the sanctity of corporate contracts that compel arbitration and bar class actions.[2] Laws, including their judicial interpretation, are inevitably constructs of cultural values. 

In 1973 the Supreme Court finds a right of privacy in the US Constitution that entitles women the right to choose to have an abortion.   In 2010 the Supreme Court finds that the First Amendment of the US Constitution bars Congress from restricting independent financial contributions to political campaigns by non-profit corporations. Corporations are persons entitled to free speech rights, and financial contributions are a form of speech. Citizens United, a non-profit corporation, may, therefore, air its film critical of presidential candidate Hillary Clinton.

Judges, both in applying the rule of law and in deciding what the rule of law is, approach the law with cultural biases. As such, judicial opinions are as much an art as a science and inevitably reflect such biases.  Those on the left are pleased when the U.S. Supreme Court finds a right of privacy in the U.S. Constitution and hence invalidates laws that bar or unnecessarily restrict abortion.[3] Those on right, however, are equally pleased when the U.S. Supreme Court interprets the right of free speech in the U.S. Constitution as sufficiently broad so as to invalidate laws that bar or unnecessarily restrict the right of corporations to express their opinions by contributing financially to political campaigns.[4] Both decisions reflect how judges reach their decisions based on cultural ideology, drawing support for their decisions from carefully selected precedent. While law and morality are not the same, both arise from intangible, cultural values—values that are often assumed but unstated.

The Court of Appeals for the Ninth Circuit’s recent decision involving Staff Sergeant Jeffrey Sarver’s lawsuit against the creators and producers of the movie The Hurt Locker reflects the greater value the United States places upon money and free speech at the expense individual privacy. In this case, if the judicial bias was reasonably clear, nevertheless support was arguably difficult to find given the intervening precedential decisions. Faced with those decisions, the opinion in The Hurt Locker case tilts in favor of free speech while also making explicit, however, the commercial element of free speech in what is often described as the “marketplace of ideas.”[5]

Jeremy Renner portrays Sgt. William James, the team leader in Iraq of an ordinance disposal unit. Sgt. James is uniquely successful in disarming improvised explosive devices.
A few years earlier, the movie’s screenwriter, Mark Boal, had written for Playboy an article about Sgt. Jeffrey Sarver, the team leader of an EOD unit that disarmed IEDs.  Renner later acknowledges that the makers of the movie modeled his behavior as Sgt. James on real-life Sgt. Sarver. Shortly before the Oscars are announced, Sarver sues the movie’s director, Kathryn Bigelow, screenwriter Boal and the producers for violation of his right of publicity.

The movie The Hurt Locker, which Kathryn Bigelow had directed, was released in the United States in June 2009. In March 2010 Bigelow as well as the movie’s screenwriter, Mark Boal, received Oscars for Best Directing and Best Screenwriting (Original Screenplay), respectively. The Academy also awarded the movie an Oscar for Best Picture. On the eve of these awards, Staff Sergeant Jeffrey Sarver sued Bigelow, Boal and the producers of the movie in federal court in New Jersey. He alleged, in essence, that Boal had been embedded with Sarver’s explosive ordinance disposal (”EOD”) unit that undertook the daily task of disarming in Iraq improvised explosive devices (“IEDs”) and that the movie in its depiction of Sergeant William James (played by Jeremy Renner) had appropriated Sarver’s life in the U.S. army as the team leader of that unit.  As such, the defendants had invaded his privacy; in particular, they had violated his “right of publicity” by commercializing his life story as well as, among other claims, casting him in a false light.

Following the transfer of the lawsuit from New Jersey to California, the federal trial court in Los Angeles on October 13, 2011, dismissed all of Sarver’s claims under California’s anti-SLAPP law,[6] a law that seeks to protect against the chilling effect on free speech rights of frivolous lawsuits. SLAPP is an abbreviation for “Strategic Lawsuit Against Public Participation,” and a SLAPP lawsuit is intended to silence speech by imposing the expense of litigation on the speaker.

In contrast, an anti-SLAPP law seeks to prevent this by imposing special procedural requirements on those bringing such suits. In California the filing of a motion to dismiss under the anti-SLAPP law automatically stays discovery, and it may result in the party bringing the lawsuit having to demonstrate a probability of success without the benefit of discovery. California’s anti-SLAPP law may also impose sanctions on the party bringing the lawsuit, namely the payment of the defendant’s expenses if the suit is successfully dismissed. In dismissing Sergeant Sarver’s claims prior to his taking any discovery, the trial court held that his right of publicity claim, in particular, was barred as a matter of law. The court ruled that the movie in its depiction of events was the type of “transformative use” that is protected as free speech by the First Amendment of the U.S. Constitution. The trial court also ordered Sarver to pay the defendants’ litigation expenses of $187,000.

Sarver appealed that decision to the U.S. Court of Appeals for the Ninth Circuit. The Motion Picture Association of America (MPAA) that represents the movie industry joined the defendants as amicus curiae in seeking an affirmance of the trial court’s decision. The MPAA argued for a broad application of the First Amendment in right of publicity cases brought against movies. By May 2013 the parties had fully submitted their briefs as well as argued the merits of their position. A more detailed discussion of these initial proceedings, both those before the trial court and the appellate filings, may be found in part 1 of “The Hurt Locker litigation: an adult’s story,” Jump Cut, No. 54 (Fall 2012).

Nearly three years later, on February 17, 2016, the Ninth Circuit issued a unanimous opinion, Sarver v. Chartier (9th Cir. 2016), in which it affirmed the trial court’s decision.[7] It strikingly affirmed the trial court on grounds that none of the parties had argued. The reasoning of its opinion underscores the importance of commerce in the “marketplace of ideas.” A few months later, on April 22, 2016, the Court also denied Sarver’s request for a rehearing or an en banc consideration of his appeal.[8]

The lengthy history leading to the decision on appeal

Why the delay of several years in issuing this unanimous opinion?

The delay is, in part, explained by the Ninth Circuit’s order on May 9, 2013, in which it expressly deferred issuing any opinion on Sarver’s appeal “pending the disposition of the petition for rehearing en banc in Makaeff v. Trump University, LLC.”[9] That case involved a class action lawsuit in which the lead plaintiff and others alleged that Trump University had induced them to pay tuition for real estate investment seminars based on fraudulent advertising claims. The rehearing at issue, if granted, sought to challenge California’s anti-SLAPP law. In fact, however, the Ninth Circuit denied that rehearing in November 2013.

The delay is also, therefore, explained, in part, by two intervening opinions on the right of publicity, Keller v. Electronic Arts (9th Cir. 2013) and Davis v. Electronic Arts (9th Cir. 2015). Both cases involved athletes’ right of publicity claims against a video game maker, and both opinions, in construing a First Amendment defense, found against the video game maker. These decisions cast doubt on the grounds for the trial court’s decision in Sarver’s case. Thus, the Ninth Circuit on October 29, 2013,

“further deferred [the appeal in Sarver’s case] pending the disposition of the petitions for certiorari [filed by the video gamer maker before the U.S. Supreme Court] in Keller v. Electronic Arts Inc. (In re NCAA Student Athlete Name & Likeness Licensing Litig.).”[10]

While the plaintiff athletes in Keller had settled with the defendants by mid-2014,[11] a petition for certiorari in Davis remained pending. Nevertheless, on the eve of Christmas, the Ninth Circuit restored Sarver’s appeal for consideration and decision in response to Sarver’s request on December 3, 2015 inquiring about the status of his appeal.[12]

The Trump University case, the initial basis for the suspension for Sarver’s appeal, seemed on its face an odd reason to defer a decision. In response to the class action alleging fraud, Trump University had counterclaimed against the lead plaintiff, Tarla Makaeff, for defamation. The Court of Appeals had reversed the trial court’s decision on defendant Trump University’s counterclaim, holding that Trump University was a “limited public figure” so that Trump University must meet a higher standard, namely “actual malice,” if it were to prevail in its defamation counterclaim. On that particular ground the Court remanded the case back to the trial court to determine whether under that higher standard Trump University had a reasonable probability of success in defeating the plaintiff Makeaeff’s anti-SLAPP motion.

Significantly, however, two of the judges in Trump University also issued a joint, concurring opinion in which they openly questioned the correctness of United States ex rel. Newsham v. Lockheed Missiles & Space Co. (9th Cir. 1999) and those cases that had followed that decision.  According to these concurring judges, Lockheed had incorrectly held that California’s anti-SLAPP law did not “collide” with the procedures of—and could be applied in—federal courts by permitting a motion to strike and awarding attorney’s fees in the context of such a motion. In other words, they questioned the underpinning of the anti-SLAPP law that had resulted in the summary dismissal of Sarver’s lawsuit.

The Ninth Circuit in November 2013 in a sharply divided opinion rejected the proposed rehearing of the Trump University appeal. In denying the rehearing, the prevailing judges reasoned:

“…California’s anti-SLAPP statute seeks to limit frivolous suits brought primarily for the purpose of chilling the valid exercise of First Amendment rights. ….”

“Through anti-SLAPP laws, the legislatures of Arizona, California, Guam, Hawaii, Nevada, Oregon, and Washington have decided to impose substantive limitations on certain state law actions…Refusing to recognize these limitations in federal court is bad policy. If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.”[13]

In contrast, based on a lengthy and technical analysis of federal court procedures, the dissenting judges reasoned:

“California’s anti- SLAPP statute impermissibly supplements the Federal Rules’ criteria for pre-trial dismissal of an action. …”

“Any attempt to impose a probability requirement at the pleading stage would obviously conflict with [Federal Civil Procedure] Rule 12. Yet that is exactly what California’s anti-SLAPP statute does. It bars an action from proceeding beyond the pleading stage ‘unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.’ …”

“Similar problems plague the interaction between California’s anti-SLAPP statute and [Federal Civil Procedure] Rule 56. Motions to strike almost invariably require consideration of matters outside the pleadings, and in those circumstances the Federal Rules state that ‘the motion must be treated as one for summary judgment under Rule 56.’…The anti-SLAPP statute eviscerates Rule 56 by requiring the plaintiff to prove that she will probably prevail if the case proceeds to trial—a showing considerably more stringent than identifying material factual disputes that a jury could reasonably resolve in the plaintiff’s favor.”[14]

Not surprisingly, the dissenters cited Metabolife International, Inc. v. Wornick (9th Cir. 2001). In that case the Ninth Circuit had noted the “collision” between the discovery normally permitted in federal courts and the stay of discovery automatically imposed as a result of the application of California’s anti-SLAPP law in the context of a motion to dismiss, such as the one successfully argued in Sarver’s case and that had barred his taking discovery.   

In essence, the prevailing judges relied upon their view that California’s anti-SLAPP law promoted free speech in preventing frivolous lawsuits against the media and that states may fashion the scope of rights for such laws that the states have themselves enacted. In contrast, the dissenting judges tilted in favor of due process under the federal procedural rules and their view that federalism requires that state rights yield to such rules. This differing view is reflected in the arguments in Sarver’s case. Bigelow, Boal, and their Hollywood producers had argued that California’s anti-SLAPP law protects free speech by requiring a higher bar so as to prevent an encroachment upon creativity. In contrast, Sarver had argued his entitlement under federal rules to take discovery so as to develop an evidentiary record for his claims. In denying the rehearing in the Trump University case, the Ninth Circuit, in effect, sided with the defendants.

The Trump University case, however, does not wholly explain the three-year delay. The delay is also explained by the Ninth Circuit’s decisions in Keller v. Electronic Arts (9th Cir. 2013), issued only a few months after suspending Sarver’s appeal based on the Trump University case, and in Davis v. Electronic Arts (9th Cir. 2015). Both decisions ran contrary to the reasoning of the trial court’s decision in Sarver’s case.

In the Keller case the Ninth Circuit acknowledged that video games “are entitled to the full protections of the First Amendment,” citing the U.S. Supreme Court’s unequivocal holding in Brown v. Entertainment Merchants Association (2011) that video games are entitled to the same protection of free speech under the First Amendment as all other communications media, including movies.[15] The Ninth Circuit then succinctly summarized the facts:

“Samuel Keller was the starting quarterback for Arizona State University in 2005 before he transferred to the University of Nebraska, where he played during the 2007 season. [Electronic Arts or] EA is the producer of the NCAA Football series of video games, which allow users to control avatars representing college football players as those avatars participate in simulated games. In NCAA Football, EA seeks to replicate each school’s entire team as accurately as possible.”[16]

While readily finding that Keller’s “suit arises from an act by [EA] made in connection with a public issue in furtherance of [EA’s] right to free speech,”[17] the Court went on to find, however, that Keller had established a “reasonable probability that [he] will prevail on his…claim…by a prima facie showing of facts…”[18] According to the Court, Keller made that showing, since EA’s use of Keller’s image was not “transformative”—and hence was not privileged as free speech—but instead potentially violated Keller’s right of publicity. Whether a work is “transformative” depends, according to precedent established by the California Supreme Court[19] and followed by the Ninth Circuit, on

“whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.”

In this case the Court analogized to the precedent of a state court case, No Doubt v. Activision Publishing (Ca. Ct. App. 2011), in which the defendant Activision’s Band Hero video game was found not transformative by enabling users to simulate performing rock bands, including the band No Doubt. In effect, the video game added nothing to the depiction of the rock bands but simply duplicated their performance in the form of a video game.

Citing the “No Doubt” case, the Ninth Circuit in 2013 finds that EA’s video game that simulates an NCAA football game with Keller and others as avatars isn’t “transformative.”

The Ninth Circuit reaffirms the “Keller” case in 2015 when Michael Davis, Billy Joe Dupree and 6,000 other former NFL players sue EA for violation of their right of publicity by the use of their avatars.

The Ninth Circuit in Keller observed that as in No Doubt

“[u]sers manipulate the characters in the performance of the same activity for which they are known in real life—playing football in this case, and performing in a rock band in Band Hero. …”

“We believe No Doubt offers a persuasive precedent that cannot be materially distinguished from Keller’s case.”[20]

The Court drew further support for its holding by noting that another U.S. Court of Appeals, the Third Circuit, had likewise found EA’s video game under the same facts was not transformative and hence not protected by free speech.[21] The Ninth Circuit summarized:

“Given that NCAA Football realistically portrays college football players in the context of college football games, the district court was correct in concluding that EA cannot prevail as a matter of law based on the transformative use defense at the anti-SLAPP stage.” [22]

Moreover, in reaching its conclusion, the Court also implicitly expressed its skepticism about video games as a medium of communication. Thus, the Court rejected a separate defense by EA that it was entitled to the statutory defense under California law as the publisher or reporter of newsworthy items.

“We think that…EA is not publishing or reporting factual data. EA’s video game is a means by which users can play their own virtual football games, not a means for obtaining information about real-world football games…Put simply, EA’s interactive game is not a publication of facts about college football; it is a game, not a reference source. These state law defenses, therefore, do not apply.” [23]

Thus, the Court acknowledged that video games generally are entitled to protection under the First Amendment and that the video game in this particular instance duplicated as accurately as possible the factual characteristics of Keller and other athletes. At the same time, the Court limited the scope of that protection given that video games entertain rather than serve, in its view, as a “reference source.”[24]

Examining EA’s video game, the dissenting judge reached a contrary conclusion, finding that the creative, transformative elements predominated. Significantly, his reasoning makes the very arguments that the defendants and the MPAA had made in Sarver’s appeal, an appeal that the Ninth Circuit had in the meantime suspended.

“The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.”[25]

Thus, for example, the MPAA had argued in Sarver’s case 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 Citizen Kane, Saving Private Ryan or Titanic.

Given the majority’s holding in Keller, it was inevitable that two years later in 2015 the Ninth Circuit in the Davis case would reaffirm that the right of publicity claims of professional athletes, as opposed to the college athletes in Keller, prevail over the free speech rights of the same video game maker. Consistent with Keller, the Ninth Circuit held that

“…EA’s use of the former players’ likenesses is not incidental, because it is central to EA’s main commercial purpose—to create a realistic virtual simulation of football games involving current and former NFL teams.”[26]

In Davis the professional athletes consisted of “Michael Davis and Billy Joe Dupree, as well as roughly 6,000 other former [National Football League or] NFL players who appear on more than 100 historic teams in various editions of Madden NFL.”[27] Not distinguishing between college and professional athletes given their common commercial interest in being compensated,[28] the Court, not surprisingly, upheld the professional athletes’ claims, since the depiction of these athletes was central to the performance and narrative of the video game.