In a lawsuit involving the 2010 Oscar-winning film The Hurt Locker, the US Court of Appeals for the Ninth Circuit held that right of publicity claims arising from expressive works, including films, are in essence content-based restrictions on speech that are presumptively unconstitutional, and affirmed the district court order dismissing the lawsuit on constitutional grounds. Sgt. Jeffrey S. Sarver v. Nicolas Chartier, et. al., Case No. 12-55429 (9th Cir., Feb. 17, 2016) (O’Scannlain, J).

In 2004 and 2005, Army Sergeant Jeffrey Sarver led the 788th Explosive Ordnance Disposal Company that identified and disposed of improvised explosive devices (IEDs) in Iraq. Sarver contended that Will James, the main character of The Hurt Locker, was based on Sarver, because the film’s screenplay was written by Mark Boal, a journalist who had been embedded with the 788th in Baghdad. Sarver believed that the film falsely portrayed him in a negative manner and hurt his reputation. Asserting that he did not consent to use of his likeness in the film, Sarver filed suit against several parties involved in the making of The Hurt Locker, alleging causes of action for misappropriation of likeness and right of publicity, invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud and misrepresentation.

On defendants’ motion, the case was transferred from New Jersey to California, and defendants then filed motions to strike the complaint under California’s anti-SLAPP statute. The anti-SLAPP law provides for early dismissal of meritless First Amendment cases aimed at chilling expression.

The district court concluded that The Hurt Locker constituted an exercise of free speech in connection with a public issue. Moreover, it found that any similarities between Sarver and the main character of the film were transformed by the significant amount of original expressive content in the screenplay and through direction and production of the movie. After the district court dismissed Sarver’s claims, he appealed.

Before looking at the merits of Sarver’s claims, the Ninth Circuit considered whether California law was properly applied and whether defendants’ anti-SLAPP motions were timely filed. The Court determined that California law applied in the federal diversity action, because under New Jersey choice of law, California had the most “significant relationship” to The Hurt Locker and to the litigation overall. In addition, the Ninth Circuit found that Cal. Civ. Proc. Code § 425.16(f), which requires that an anti-SLAPP motion be filed within 60 days of the complaint, did not apply here because it was a procedural device that was in direct conflict with the federal summary judgment rule. Citing its own precedent, the Ninth Circuit established that California’s 60-day time limitation does not apply in federal diversity cases. Therefore, the Court found that defendants’ anti-SLAPP motions were timely filed in response to Sarver’s complaint.

The Ninth Circuit then examined the merits of the defendants’ anti-SLAPP motions under the two requirements of the statute: (1) a plaintiff’s suit must arise from a defendant’s act made in connection with a public issue in furtherance of the defendant’s right to free speech, and (2) the plaintiff must have a reasonable probability of a favorable judgment.

On the first issue, the Ninth Circuit determined that the Iraq War, The Hurt Locker and the narrative of the film’s main character, Will James, spoke directly to issues of public concern. In particular, the Court distinguished the present case from its earlier decision in Dyer v. Childress, which found “no discernible public interest” in the use of someone’s persona in a particular film, noting that the nature of Sarver’s occupation during the Iraq War made his persona part of the issues of public interest.

Under the second part of the analysis, the burden shifted to Sarver to substantiate a “legally sufficient” claim. In this regard, the Ninth Circuit determined that even if Sarver could establish all elements of a right of publicity claim under California law, pursuing a right of publicity action at all would infringe defendants’ right to free speech. Specifically, since the film was speech fully protected by the First Amendment, Sarver could not show a compelling state interest in preventing the defendants’ speech by applying California’s right of publicity law where to do so would be in derogation of the defendants’ First Amendment rights. Thus, the Court concluded that Sarver could not state a right of publicity claim and the district court did not err in granting defendants’ anti-SLAPP motions.