JUMP CUT
A REVIEW OF CONTEMPORARY MEDIA

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”. [44] [open endnotes in new window]

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, [45] 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. [46] As Sarver has acknowledged, [47] 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. [48] 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

• the residence of the parties,
• the location of the relevant documents,
• whether knowledgeable third party witnesses are within the court’s jurisdiction, and
• “the interests of justice.”

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. [49] The New Jersey court seized upon that admission. [50] 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. [51]

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 [52] 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. [53]

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. [54] 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. [55] 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.  [56] 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 [57] [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.” [58] 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.” [59]

Boal then catalogues 29 examples of ways in which the William James character differs from Sarver, mentioning, for example,

• that Sarver did not have an African-American member on his EOD team;
• that Sarver met his team members in the United States, not in Iraq;
• that Sarver never removed the plywood from his housing unit;
• that Sarver never responded to a car bomb near a United Nations building; and
• that Sarver never pursued insurgents with the two members of his team through the back alleys of Baghdad. [60]

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. [61] 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.” [62]

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’.” [63]

Sarver then attaches what he claimed is a copy of those ‘ground rules’. [64] 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. [65] 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.” [66]

Sarver adds:

“Throughout Mr. Boal’s embedment, my team and I sheltered, personally protected, and ensured the personal safety of Mr. Boal.” [67]

Sarver, in turn, catalogues 29 examples of how the movie represents a portrayal of Sarver. [68] Sarver points, for example, to

• Jeremy Renner’s impersonation of certain physical characteristics of Sarver (which supposedly Jeremy Renner acknowledged on a YouTube video); [69]
• William James’ sleeping while wearing his bomb helmet and his showering while fully dressed in his army uniform;
• James’ unsuccessful struggle to maintain his family relationship in contrast to that of the other members of his team;
• James’ record at having disarmed more IEDs than any other soldier;
• his removal of his bomb suit in order to work in the close confines of a car bomb; and
• James’ characterization as a soldier who is “abnormally fascinated” with death to the point where it takes on greater importance than his family. [70]

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”). [71] 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. [72]

The sworn statements of Boal and Sarver differ or qualify one another on numerous, other points. For example:

• Boal claims that he was embedded with Sarver’s unit for 14 days; Sarver claims that Boal was with him for 30 days. [73]
• Boal claims that Sarver did not use a smoke grenade during his first mission; Sarver claims that Boal watched Sarver’s use a smoke grenade to create a diversion with respect to potential snipers. [74]
• Boal claims that Sarver never fired at the windshield or tires of a taxi or pressed his pistol to the driver’s forehead; Sarver claims that Boal observed him discharge his pistol through the windshield of an Iraqi motor vehicle and press his pistol to the forehead of an Iraqi driver. [75]
• Boal claims that Sarver never befriended an Iraqi child who was selling DVDs; Sarver says that Boal observed Sarver befriend Iraqi children “from whom I would often purchase whatever trinkets or wares they were trying to sell.” [76]
• Boal claims that Sarver never killed insurgents in a firefight in the desert; Sarver claims that he told Boal of how Sarver had been involved in a desert fight while providing security to “mechanics fixing a vehicle” and had used the “Barrett sniper rifle.” [77]
• Boal claims that Sarver never encountered an innocent Iraqi civilian with a bomb strapped to his body which Sarver was then unable to diffuse; Sarver claims that he told Boal of how Sarver had on numerous occasions removed bombs that “were attached to and just inside the bodies of insurgents,” including a description of how Sarver had encountered a suicide bomber detonating himself. [78]

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. [79] 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; [80] 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. [81] 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. [82]

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.” [83] It is not that Sarver’s claim of injury is without infirmity.

• There is clearly an element of legalese to these claimed injuries;
• these injuries are surely difficult to quantify;
• the Playboy article published several years before had already exposed Sarver to at least some of these injuries; and
• the timing of the lawsuit only days prior to Oscar suggests an effort at maximizing the return on Sarver’s “investment” in the lawsuit.

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 [84] had found that movies were a “business pure and simple” and “not… part of the press,” by 1952 the Court [85] 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, [86] 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. [87] 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. [88] 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: [89]

“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. [90] Faced in 2001 with a case in which free speech conflicted with a right of publicity claim, the California Supreme Court [91] 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.  [92] 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.

The California Supreme Court holds in 2001 that the copying of an individual’s persona in an expressive medium, such as a movie, is lawfully protected free speech when the copying has “transformed” the persona. In the case before it, the court found that a charcoal drawing of the Three Stooges was not “transformative".	Andy Warhol’s Marilyn would, however, be “transformative, ” according to the California Supreme Court.

Applying this same test two years later, the California Supreme Court [93] 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.” [94] On the other hand, examples of “non-transformative” uses have included the following:

• greeting cards on which appeared the image of a celebrity placed in a setting similar to a TV episode for which the celebrity was known and which included a phrase associated with that celebrity; [95]
• a football video game which included the image of a quarterback displaying many characteristics associated with the quarterback, such as his jersey number, weight and height; [96] and
•  a video game with avatars of rock band members who perform rock songs “as literal recreations of the band members,” notwithstanding, as the court observed, that the avatars can be manipulated to appear in “fanciful venues,” such as outer space,” or to perform songs to which the band members would object. [97]

Two years later the California Supreme Court finds “transformative” images of well-known musicians in which they appear as “half-human and half-worm – in a larger story which is itself quite expressive.”	Greeting cards are not “transformative” where Paris Hilton appears on those cards together with the phrase “that’s hot”.

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.

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