Ninth Circuit Tosses Hurt Locker Case

By Jennifer E. Rothman
February 17, 2016

Today the Ninth Circuit finally decided Sarver v. Chartier. The court affirmed the district court’s holding that the alleged use of Sergeant Jeffrey Sarver’s identity in the Academy-Award winning film The Hurt Locker is protected by the First Amendment. The ultimate holding that the use of a real person’s identity in an expressive work, like a major motion picture, is protected by the First Amendment is unsurprising and absolutely correct.

What is much more interesting about the decision is its unconvincing and poorly reasoned efforts to distinguish recent decisions by the court that rejected First Amendment defenses in the context of videogames. Recall that in Keller v. Electronic Arts and Davis v. Electronic Arts, the Ninth Circuit held that the First Amendment does not protect the uses of athletes’ identities in the context of videogames. (A cert. petition in Davis is currently pending.)

So how did the Ninth Circuit in Sarver try to make the case that Keller and Davis are different?  The court claims that only “speech which either appropriates the economic value of a performance or persona or seeks to capitalize off a celebrity’s image in commercial advertisements is unprotected by the First Amendment.”  There are a host of problems with this analysis.

First, it does not accurately describe the right of publicity under California law which is not (and has never been) limited to “commercial advertisements,” actions by “celebrities” or to wholesale appropriation of a performance or persona. The court seems to misunderstand the nature of California law which permits recovery for both dignitary and proprietary injuries under its right of publicity laws.  By doing so, the panel contravenes not only state law precedents, but other Ninth Circuit decisions as well.

Second, the decision doesn’t explain how there could be a different outcome in Keller or Davis as a matter of First Amendment law.  The videogames in those cases were not commercial advertisements, nor did they capture an “entire act” or performance a la Zacchini (the human cannonball case to which the Ninth Circuit cited for this proposition). To the extent that some economic value of the football and basketball players was appropriated in those videogame cases, it was certainly not the players’ entire economic value.

Moreover, this economic value itself depends largely on whether a court requires payment for such uses or not. And here’s the rub—the same can be said here of Sarver’s claim. If the main character in The Hurt Locker —Will James—is in fact based on Sarver then lots of people reaped an economic benefit from the use, from the journalist and screenwriter, Mark Boal, to Kathryn Bigelow, the director, to Nicholas Chartier, the producer, and of course the film studio as well. Hollywood producers and studios often pay for life rights, and if Sarver’s personality and life story could be used without his permission then he does in fact lose out on that economic value.

California’s right of publicity is not limited to uses of people’s identities only if those identities have commercial value, and it would be troublesome as a matter of policy to conclude otherwise. It would mean that those most likely to suffer dignitary injuries—private figures—would have no claim—while those most likely to have personalities that are the subject of public concern and interest will have claims that can defeat First Amendment defenses. Such public figures are the very people that we need to permit robust and free discussions about in creative works and news.  Yet, the Ninth Circuit stunningly suggests that such individuals rather than having limited control over the public use of their identities, have more control over it than private figures do. 

Accordingly, before Hollywood lawyers start celebrating this victory, they should take a second look at all the aspects of the opinion that should send shivers down their spines. The panel’s suggestion that the First Amendment defense might have failed if Sarver had been a public figure or commercialized his identity is startling.  Sure the studio won this case, but the opinion suggests that if Sarver were instead Colin Powell or Paris Hilton, it might have lost because those people are well known and have intrinsic economic value. If Sarver had himself sought to publish his own book or sell t-shirts with his image on them, the court suggests that he would have had a cause of action because then the right of publicity would be doing its work to “incentive[ize]” Sarver to commercialize his identity.

Perhaps solace can be found in the court’s subsequent suggestion that “storytellers and artists” can take the “raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art.”  The court says that one can do such a thing in “articles, books, movies, or plays.” So maybe Hollywood lawyers can sleep peacefully tonight after all…but not so for videogame makers. 

Notably absent from the Ninth Circuit’s list of protected uses are videogames. This suggests that videogames are something different and cannot rise to the level of art.  Although as Eugene Volokh points out the list also does not include tv shows and songs, and is not meant to be exhaustive, it's hard to conclude that the Ninth Circuit is treating videogames equally despite statements in Keller that it is. The Ninth Circuit's disfavoring of creative expression in videogames directly contravenes the Supreme Court’s express conclusion that videogames are as protected as these traditional forms of media. So it seems that either Keller and Davis are wrongly decided (which I think they are), or the Ninth Circuit treats videogames differently when the rubber hits the road.

Make no mistake, the use of Sarver’s identity in The Hurt Locker (to the extent it actually is used) absolutely should be protected by the First Amendment. But the Ninth Circuit’s holding in Sarver leaves us with more problems than it solves. We are left with a troubling suggestion that if Sarver had commercialized his identity the use would not be protected. And at least as troubling is the problematic suggestion that videogames cannot tell stories or be artistic, and may deserve lesser First Amendment protection. Not only does this directly clash with Supreme Court precedent that says otherwise, it also seems stuck in an outdated 20th century notion of videogames, completely unmoored from the 21st century reality of such creative works. Of course, the Sarver panel was stuck in a difficult position because it was bound by Keller and Davis.  Until the Supreme Court steps in to fix those decisions, we will undoubtedly see more and more bizarre analyses like this one as courts struggle to navigate the right of publicity and its interface with the First Amendment.

Sarver v. Chartier (9th Cir., Feb. 17, 2016)