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:
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:
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: 
In accepting his award for best original screenplay, Boal echoed that debt to the military:
And in accepting with others the Oscar award for Best Picture, Bigelow underscored that sentiment:
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”:
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:
The article details Sarver’s personal life story. Thus, the article describes Sarver’s formative childhood: 
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:
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.
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:
Sarver went on to explain how Boal and others came to acquire this information about him:
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…).”