Hurt Locker Publicity Rights Lawsuit Brought By War Veteran Tossed Again On 1st Amendment Grounds

from the hurts-donut dept

Remember The Hurt Locker? Yes, the film that perhaps became best known for resulting in all kinds of legal action against those who pirated it also faced a legal challenge of its own. Jeffrey Sarver is a veteran of the Iraq War who claimed in California court that The Hurt Locker was totally about his own life, for which he wanted compensation, but also that it portrayed him in a falsely negative light, for which he also wanted compensation. In other words, it was a portrayal of him and also not, now gimme some money. That initial battle was decided on First Amendment grounds, with the court affirming the film as a transformative work protected as speech and, without any actual evidence that there was a false portrayal specifically of Sarver, who is not named in the film, there was no grounds for the suit.

And that really should have been the end of that. But Sarver appealed the ruling anyway and, half a decade later, the 9th Circuit Court of Appeals has affirmed the lower court’s ruling.

We conclude that this focus on the conduct of the Iraq War satisfies California’s standards for determining whether an issue is one of public concern. That war, its dangers, and soldiers’ experiences were subjects of longstanding public attention. Indeed, The Hurt Locker, with its unique focus on IED disposal teams, contributed to that attention. That the film won several Oscars and reached widespread audiences only buttresses our conclusion. The film and the narrative of its central character Will James speak directly to issues of a public nature.

The ruling, having affirmed the applicability of the First Amendment to the film, then moves on to Sarver’s publicity rights claim.

But, even assuming for the sake of argument that Sarver can establish all elements of his claim, the defendants contend that their production of the film is nevertheless protected under the First Amendment. That is, they argue that allowing Sarver to pursue his right of publicity action against them would infringe their constitutional right to free speech. Because it is dispositive, we consider that argument first.

And, from there, under the shade of a First Amendment umbrella, Sarver’s publicity rights claim stands no chance and the court affirms the lower ruling. Because, to do otherwise, would have unbelievable chilling effects on artistic and political expression regarding public figures, living or dead. Imagine if films, books, games, and music could face legal action for discussions and portrayals on matters such as war, foreign affairs, and the like. That outcome would be purely to the detriment of the public interest, which is perhaps more paramount in matters such as these than in any other.

Hopefully this will finally put this nonsense to bed.

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Comments on “Hurt Locker Publicity Rights Lawsuit Brought By War Veteran Tossed Again On 1st Amendment Grounds”

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First, disclosure: I haven’t seen the movie. I think this ruling reached the right conclusion.

However, this caught my attention, “That the film won several Oscars and reached widespread audiences only buttresses our conclusion.

Am I the only one who is bothered by this? Is this suggesting that if the movie had been less successful that they might have been liable under this claim? Why should the success or failure of the movie impact the free speech rights of the creators? I guarantee that at some point in the future someone will sue a less successful movie (as a form of censorship, most likely) and will point to this ruling as a reason that they don’t get First Amendment protections because they didn’t fare so well at the box office.

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