Sarver Tells Ninth Circuit – Hey, Don’t Forget About Me!

By Jennifer E. Rothman
December 9, 2015

In a letter filed this week in the Ninth Circuit, Sarver’s attorney reminds the Ninth Circuit that this case, which was argued on May 9, 2013, still has not been decided by the Court of Appeals. Sarver v. The Hurt Locker, LLC, involves a right of publicity claim (among other claims) for the alleged use of Sergeant Jeffrey Sarver’s identity in the Oscar-winning movie The Hurt Locker. One of the reasons the Ninth Circuit delayed deciding this case was that it was waiting to see if the Supreme Court granted certiorari in Keller v. Electronic Arts – the case involving right of publicity claims by former student-athletes on the basis of NCAA basketball and football videogames. That case settled, but a petition involving similar issues is currently under review in the Supreme Court in Davis v. Electronic Arts and it may be prudent for the Ninth Circuit to wait to see if cert. is granted in Davis at this point before deciding Sarver. The Ninth Circuit also may be struggling with how to distinguish this case from Keller and Davis. If the First Amendment does not protect the realistic and limited portrayals of student and professional athletes in videogames, how can it protect realistic depictions of main characters in motion pictures that are based on real people? The Supreme Court in Brown v. Entertainment Merchants Association explicitly – and appropriately – concluded that videogames are as protected as other expressive works. This presents a challenge for the Ninth Circuit and other courts which seem more reluctant to jeopardize books, movies, songs and other traditional expressive works that incorporate historical figures. The Ninth Circuit may be hoping for a Supreme Court grant and reversal in Davis at this point so it doesn’t have to try to thread this impossible needle.