An Anti-SLAPP in the Face: One Way The First Amendment Can Avert Right of Publicity Issues

NIKKI RIGL – The Hurt Locker, an award-winning historical thriller film about a United States Army explosive ordinance disposal technician in the Iraq War, recently came under inspection of the U.S. Court of Appeals for the Ninth Circuit.[1] Sergeant Jeffrey Sarver, a member of the Army unit upon which the dramatic film was based, sued Mark Boal, the writer of the film.[2] Sarver claimed that his right of publicity had been violated in that The Hurt Locker film exploited his life story without due compensation and permission.[3] Affirming the lower court, the Ninth Circuit held that Sarver’s First Amendment right to his life and experiences during the war was overshadowed by Boal’s right to share an important historical story of public concern through the lens of a film: the First Amendment “safeguards the storytellers and artists who take the raw materials of life . . . and transform them into art [such as] movies.”[4] Sarver himself is a private figure and, as such, his persona was not being appropriated in the way necessitated for a right of publicity claim—the significance of the tragic Iraq War, and not the marketability of Sarver’s identity independent of his role as a Sergeant during the Iraq War, is what lay at the crux of the film and drew such great audience attention upon its debut.[5] Accordingly, the Ninth Circuit dismissed Sarver’s suit under California’s anti-SLAPP law, which protects persons exercising their rights of petition and free speech from meritless lawsuits.[6]

The Ninth Circuit in this case attempted to draw a finer line between instances where the right of publicity is more likely to override a First Amendment claim and when it is not.[7] The opinion cites Zacchini v. Scripps-Howard Broadcasting Co. as an instance where right of publicity trumped the First Amendment—a polarized view to that adopted in the Sarver case.[8] The Zacchini case concerned the taping and broadcasting of Zacchini’s “human cannonball” act on national TV.[9] The court in Zacchini held that the taping and airing of Zacchini’s act in its entirety was a violation of Zacchini’s right of publicity and that the social purpose of the broadcast was not better served in any way by essentially exposing and spoiling Zacchini’s act.[10] The foremost difference between these cases, which allowed for such disparate outcomes, lay in the commercial exploitation sought originally by Zacchini and Sarver, respectively.[11] Sarver is a private person who did not “invest his time and money to build up economic value in a marketable performance or identity;” contrastingly, Zacchini had built up that economic value in his identity by creating a solitary performance through which he earned an income.[12] The broadcasters’ exploitation of Zacchini’s act unjustly took away Zacchini’s future profits from his act for the sake of an unnecessary news segment; Sarver’s life was not impacted in such a way through Boal’s film (“he [continues to] live[] his life and work[] his job”) and, accordingly, the First Amendment prevailed.[13]

It will be interesting to see what other demarcations are made to the “right of publicity/First Amendment dichotomy” as new mediums of expression generate and ideas of privacy and freedom of expression further morph.

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[1] The Hurt Locker, IMDB, http://www.imdb.com/title/tt0887912/; Rodney A. Smolla, Storytelling, the First Amendment, and Right of Publicity, The Media Institute (February 29, 2016), http://www.mediainstitute.org/IPI/2016/022916.php; see generally Sarver v. Chartier, 813 F.3d 891(9th Cir. 2016).

[2] Rodney A. Smolla, Storytelling, the First Amendment, and Right of Publicity, The Media Institute (February 29, 2016), http://www.mediainstitute.org/IPI/2016/022916.php.

[3] Id.

[4] Id.; see also Max Kimbrough and Tammy Cummings, The Right of Publicity, Philadelphia Volunteer Lawyers for the Arts, http://www.artsandbusinessphila.org/pvla/documents/RightofPublicity.pdf (“[S]omeone’s life story (even in the form of an ‘unauthorized’ biography) is potentially fair game, despite the right of publicity protections.”); Sarver v. Chartier, 813 F.3d. 891, 905 (9th Cir. 2016).

[5] See Rodney A. Smolla, Storytelling, the First Amendment, and Right of Publicity, The Media Institute (February 29, 2016), http://www.mediainstitute.org/IPI/2016/022916.php; see also Kathryn J. Fritz and Derek Khanna, Litigation Alert: Hurt Locker Decision Clarifies Differences in First Amendment Interests and Personal Interests Protected by the Right of Publicity, Fenswick & West LLP (February 23, 2016), https://www.fenwick.com/publications/pages/litigation-alert-sarver-v-chartier.aspx (“The film did not appropriate the economic value of Sarver’s persona or seek to capitalize on his celebrity image.”).

[6] Kathryn J. Fritz and Derek Khanna, Litigation Alert: Hurt Locker Decision Clarifies Differences in First Amendment Interests and Personal Interests Protected by the Right of Publicity, Fenswick & West LLP (February 23, 2016), https://www.fenwick.com/publications/pages/litigation-alert-sarver-v-chartier.aspx; see California’s Anti-SLAPP Law and Related State Statutes, CASP (2016), http://www.casp.net/california-anti-slapp-first-amendment-law-resources/statutes/.

[7] Kathryn J. Fritz and Derek Khanna, Litigation Alert: Hurt Locker Decision Clarifies Differences in First Amendment Interests and Personal Interests Protected by the Right of Publicity, Fenswick & West LLP (February 23, 2016), https://www.fenwick.com/publications/pages/litigation-alert-sarver-v-chartier.aspx.

[8] Kathryn J. Fritz and Derek Khanna, Litigation Alert: Hurt Locker Decision Clarifies Differences in First Amendment Interests and Personal Interests Protected by the Right of Publicity, Fenswick & West LLP (February 23, 2016), https://www.fenwick.com/publications/pages/litigation-alert-sarver-v-chartier.aspx.; Sarver v. Chartier, 813 F.3d 891, 903 (9th Cir. 2016).

[9] Sarver v. Chartier, 813 F.3d 891, 903 (9th Cir. 2016); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 563-564 (1977).

[10] Sarver v. Chartier, 813 F.3d 891, 903-904 (9th Cir. 2016); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 573-576 (1977).

[11] Kathryn J. Fritz and Derek Khanna, Litigation Alert: Hurt Locker Decision Clarifies Differences in First Amendment Interests and Personal Interests Protected by the Right of Publicity, Fenswick & West LLP (February 23, 2016), https://www.fenwick.com/publications/pages/litigation-alert-sarver-v-chartier.aspx.

[12] Sarver v. Chartier, 813 F.3d 891, 903-904 (9th Cir. 2016); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 573-576 (1977).

[13] Sarver v. Chartier, 813 F.3d 891, 904 (9th Cir. 2016); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 573-576 (1977).