Sarver v. The Hurt Locker LLC et al.

By Carter Anne McGowan

In 2010, director Kathryn Bigelow’s The Hurt Locker nearly swept the major awards at the Oscars, winning Best Picture, Best Director, and Best Original Screenplay. Recently, a lawsuit brought by Jeffrey Sarver, alleging not only that The Hurt Locker wasn’t entirely original but was also defamatory and a violation of Sarver’s rights to privacy and publicity, was tossed out by the District Court for the Central District, California, under that state’s anti-SLAPP (Strategic Lawsuits Against Public Participation) Law.

Jeffrey Sarver serves in the U.S. Army. While serving in Iraq from July 2004-January 2005, he worked as an Explosives Ordinance Disposal (EOD) Technician. In December 2004, journalist Mark Boal was embedded with Sarver’s unit. In addition to interviewing Sarver, Sarver’s unit, and several other units, Boal photographed and videographed them. When Sarver returned to the U.S., Boal spoke with him again. In August 2005, Boal’s article was first published in Playboy and later published as an abridgement in Reader’s Digest. In what Sarver alleged was a surprise to him, the article focused entirely on Sarver, instead of on the units with which Boal was embedded.

Boal later wrote the screenplay for The Hurt Locker and also served as a co-producer on the film. The film featured a main character named “Will James,” a damaged, antiheroic cowboy of a soldier who lives for danger and flouts the chain of command. When released in 2009, the film contained a disclaimer that it was a work of fiction. In March 2010, Sarver sued Boal, Bigelow, and the production companies behind the film, alleging: (1) a violation of his right to publicity due to misappropriation; (2) false light invasion of privacy; (3) defamation; (4) breach of contract; (5) intentional infliction of emotional distress; (6) actual/intentional fraud; (7) constructive fraud/negligent misrepresentation. The defendants filed a Motion to Strike the complaint under California’s anti-SLAPP statute, Cal. Code. Civ. Proc. §425.16, and, last week, Judge Jacqueline Nguyen held in their favor and struck the complaint in its entirety.

The California anti-SLAPP provision, which shall be “construed broadly”, §425.16(a), provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” §425.16(b)(1).

Therefore, a defendant must initially show that those acts alleged to be violative are (a) First Amendment protected acts (rights of petition or free speech) and (b) made in connection with a “public issue.” The Sarver court easily found the The Hurt Locker to fall under the First Amendment’s protection, citing Burstyn v. Wilson (343 U.S. 495 (1952)), in finding that “Motion Pictures are a significant medium for the communication of ideas” (Burstyn, 343 U.S. at 501), and therefore protected speech.

With regard to the second prong of the defendants’ burden – that of a public issue – California courts have taken to heart the legislative exhortation to construe the statute broadly. The court, in finding that the alleged portrayal of Sarver is related to an issue in the public interest, relied upon Tankin v. CBS Broadcasting, Inc. (193 Cal. App 4th 133, 144 (2011)), which stated, “an issue of public interest…is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute.” The Sarver court then went on to list several aspects of Sarver’s story that made it to be “of public interest”: (1) Sarver’s service in the Iraq War; (2) the importance of EOD Technicians in the War; (3) the danger of Sarver’s job; and (4) “Sarver’s claim that he disarmed more IED’s than any single team.” (Sarver at 3.)

Once the court found that the defendants had met both prongs of their burden under anti-SLAPP, the burden of proof shifted to plaintiff Sarver to prove that the facts of each cause of action, if believed by the fact-trier, would support a judgment as a matter of law in favor of the plaintiff. The second half of anti-SLAPP motions are, in this way, similar to summary judgment motions.

In short order, the court struck down each of Sarver’s causes of action as failing to establish the necessary prima facie showing necessary for a judgment as a matter of law:

Right of Publicity/Misappropriation. Relying on the common law definition of misappropriation, and California’s willingness to extend misappropriation claims to non-celebrity plaintiffs, the court nevertheless found that, pursuant to the “transformative use” defense adopted by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc. (25 Cal. 4th 387 (2001)), the defendants were protected by their First Amendment rights, as The Hurt Locker contained “significant transformative elements”, such as personal differences between Sarver and the Will James character in the film, the dialogue in the film, and the direction of the film. Furthermore, “the value of The Hurt Locker unquestionably derived from the creativity, and skill, of the writers, directors, and producers…whatever recognition or fame Plaintiff may have achieved, it had little to do with the success of the movie. Thus, Plaintiff’s misappropriation claim is banned by the First Amendment as a matter of law.” (Sarver at 15.)

Right of Privacy/False Light: Successful false light claims must prove that not only must the depictions of the harmed individual be false, but they also must be highly offensive to a reasonable person. In less than one paragraph of analysis, the court did away with this claim as (1) redundant to the defamation claim and (2) unsupportable, as, in the court’s opinion, “Will James” is presented as a war hero, which would not be a highly offensive portrayal to a reasonable person.

Breach of Contract: Sarver alleged that he was a third party beneficiary of the agreement between Boal and the U.S. Department of Defense, and that Boal “breached the contract by reporting about Plaintiff’s personal life.” (Sarver at 19.) Unfortunately, Sarver presented no evidence of such a contract.

Intentional Infliction of Emotional Distress: In another brief dismissal, the court did not even reach the second and third requirements for success under this cause of action, holding that the defendants’ actions were not “extreme and outrageous” under the first requirement for intentional infliction of emotional distress, as there was nothing extreme or outrageous about writing a screenplay based on reporting (although, notes this blogger, the court earlier in its decision relied on the disclaimer alleging the film to be fictional) and that it was not outrageous to use a fictional name for a character, even if it was based on Sarver.

Fraud/Negligent Misrepresentation: The court bundled these last claims together, holding that Sarver did not submit any evidence that Boal misrepresented his intent to write about EOD Techs, and that he did not “obfuscate[] the fact that he was writing a screenplay based on the Playboy article…” (Sarver at 22.)

Finally, as if to add insult to (non)injury, the court awarded attorney’s fees to the defendants, as defendants who succeed in an anti-SLAPP special Motion to Strike are entitled to reimbursement of attorneys’ fees. Although the court held that Sarver’s rights were not violated in The Hurt Locker, it certainly put him in one.

Yet there is something about this case that nags a bit at the conscience. The speed and lack of analysis with which the court did away with Sarver’s claims, combined with its reliance on fairly flimsy arguments like disclaimers and character names, combined with its statements later in the decision that the film was based on the Playboy article, leave questions as to how thoroughly the court analyzed the issue before it.

Also, is this the sort of case to which we want anti-SLAPP motions should apply? In California, anti-SLAPP Motions to Strike immediately stay discovery. This case seems to be a case where discovery is warranted. It hardly seemed to be a “strategic lawsuit” of the type we saw during the civil rights movement, designed to chill free speech. Despite the gung-ho language of the California anti-SLAPP statute, this case may be one in which a statute meant to be construed broadly was indeed construed too broadly.


Originally published on October 25, 2011 on the NYSBA Entertainment, Arts, and Sports Law Blog


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