Of all of the movies I have seen, The Hurt Locker has my favorite ending. The Ninth Circuit’s disposition of a lawsuit by the solider that inspired The Hurt Locker’s fictionalized main character similarly seemed right yet left me with a sense of unease. Supreme Court review is needed to resolve the complex, difficult issues presented in this case. As I have noted before, claims involving the right of publicity and the First Amendment are adjudicated using conflicting and easily manipulated standards. Further, although some have argued that right of publicity claims are mainly about money – or who has to pay for speech – right of publicity claims are quite different than copyright protections and likely will chill more speech if they are allowed to proceed.
The Ninth Circuit’s decision in Sarver v. Chartier seems legally sound, but it does raise some tough questions. The Ninth Circuit affirmed the dismissal of a lawsuit brought by Army Sergeant Jeffrey Sarver, an Explosive Ordinance Disposal technician. The court of appeals held that the First Amendment defeated Sgt. Sarver’s allegations that the movie, written by a journalist embedded with Sgt. Sarver’s company in Iraq, appropriated his likeness without consent. The defendants, including the director, screenwriter, and producer of the movie, argued that they did not appropriate Sgt. Sarver’s likeness, because their main character is not based specifically on him. However, even assuming that Sgt. Sarver could meet the elements of a California right of publicity claim, the Ninth Circuit held that the First Amendment bars his claim.
The Ninth Circuit, unlike other circuits, applies the “transformative use” test to the interaction of the state right of publicity tort with federal First Amendment protections. The commercial use of someone’s name, likeness, or characteristics is protected by the First Amendment, so long as the speaker has creatively transformed that identity and likeness. This principle explains why Paris Hilton can successfully sue Hallmark for using her image and catch phrase “that’s hot,” but Mark Zuckerberg likely cannot sue the makers of The Social Network for commercially exploiting his story. Just as Andy Warhol transformed Marilyn Monroe’s likeness into an exposition of pop culture, The Hurt Locker transformed Sgt. Sarver’s story into art, replete with important social commentary, exquisite acting, and chilling imagery.
However, reasonable minds can differ on whether Sgt. Sarver should have been able to sustain his right of publicity lawsuit. The best argument for allowing Sgt. Sarver’s claim is that he deserves the economic value of his life story. The only Supreme Court case to address the interaction of right of publicity and free speech, Zacchini v. Scripps-Howard Broadcasting, held that the First Amendment does not protect a television station that aired the entire performance of a man’s “human cannonball” act. Part of the basis for the Court’s holding was that the station had unjustly enriched itself by taking the economic value Zacchini invested by producing his performance. Commercially using Sgt. Sarver’s life story, if The Hurt Locker did so, similarly transfers economic value from Sgt. Sarver to Hollywood. However, if his right of publicity claim is permitted, Sgt. Sarver could enjoin future distribution of The Hurt Locker, preventing the communication of his story entirely. Zacchini presumably would have allowed his performance to be aired for a fee, since his act was a performance. Sgt. Sarver’s conduct in Iraq, while honorable, brave, and highly specialized, was not a creative performance.
The factual distinctions between Zacchini and the instant case should make all the legal difference. The right of publicity claim brought by Sgt. Sarver is more about reputation than reaping the value of one’s intellectual labor (indeed, Sgt. Sarver also brought a defamation claim.). Zacchini treats the right of publicity involved in that case as closer to a copyright interest. The Zacchini Court analogizes to copyright law, because plaintiff’s performance was aired unaltered and in full. But copyright law, which is mentioned in the Constitution, does and should interact differently with the First Amendment than right of publicity cases without a copyright analog. Copyright is based on the idea that allowing people the economic value of their speech will incentivize creativity. Sgt. Sarver was not performing his job as a creative endeavor, so granting him a right of publicity claim wouldn’t incentivize him to produce innovative speech, as it would in the case of copyright protections defeating First Amendment claims. Sgt. Sarver’s work as a soldier, one should assume, was not undertaken in the hopes that he could reap the economic value of the popularization of his image and story. In contrast, The Hurt Locker might not have been made at all if the producers had to pay Sgt. Sarver a substantial fee.
At the end of its ruling on Sgt. Sarver’s right of publicity claim, and before dismissing his other claims for defamation, false light, and intentional infliction of emotional distress, the Ninth Circuit said the following. “In sum, The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art, be it articles, books, movies, or plays.” I cannot think of a better ending.