Applying California's Anti-SLAPP Statute, District Court Strikes All Claims Against Makers of Oscar-Winning Film The Hurt Locker
Laura McQuade | Bloomberg Law
The U.S. District Court for the Central District of California struck all of plaintiff Jeffrey Sarver’s claims against the makers of the Oscar-winning film The Hurt Locker, finding that they violated California’s Anti-SLAPP statute, Cal. Code Civ. Proc. § 425.16.
Sarver’s Claims Against Filmmakers
Sarver was an Explosive Ordinance Disposal technician who served in Iraq. Defendant Mark Boal, who followed Sarver’s unit and later visited Sarver at his home in Wisconsin for additional interviews, wrote an article that focused entirely on Sarver’s life and experience in Iraq. Boal subsequently wrote the screenplay forThe Hurt Locker, a film that went on to win six Oscars, among other awards.
Sarver alleged that Boal based the main character of the film, Will James, on his life without his consent. According to Sarver, the disclosure of his identity placed him at greater risk in his military operations; he also claimed that he had been denied advancement as a result of appearing to have sold the right to his story. Sarver brought suit against the filmmakers for, among other things, right of publicity and misappropriation of name and likeness; false light invasion of privacy; defamation; and intentional infliction of emotional distress. Defendants moved to strike Sarver’s complaint on the basis of California’s anti-SLAPP statute.
Sarver Not Likely to Prevail on the Merits of His Claims
California’s statute prohibiting strategic lawsuits against public participation, known as the anti-SLAPP statute, permits a motion to strike the claims in a complaint on the basis that they were brought to interfere with a defendant’s exercise of free speech. Courts engage in a two-part analysis in addressing a defendant’s motion to strike under this statute. First, the defendant must make a threshold showing that his acts were in furtherance of the right to free speech, and in connection with a public issue. If the defendant makes this showing, the burden then shifts to the plaintiff, who must show that he is likely to prevail on his claims. According to the court, defendants “easily” met the first prong because The Hurt Locker was a commercial film. Sarver at 8. The court went on to assess each of Sarver’s claims and found that Sarver had not demonstrated that he was likely to prevail on any of them.
— Right of Publicity, Misappropriation, and Intentional Infliction of Emotional Distress Claims
The court concluded that the transformative use defense barred Sarver’s right of publicity claim as a matter of law. The transformative use defense “strikes a balance between the individual’s right of publicity and the First Amendment right to free expression.” Sarver at 11. In order to determine whether the defense applies, a court must examine the defendant’s work and compare it with the plaintiff’s likeness in order to determine whether the work “contributes significantly distinctive and expressive content; i.e., is ‘transformative.’” Id. (quoting Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001)). If the court determines that the defendant’s work is sufficiently transformative, then the First Amendment bars the plaintiff’s right of publicity claim.
Defendants cited numerous differences between Sarver’s life and the portrayal of the Will James character in order to demonstrate the expressive content of the movie. Defendants also pointed to the fictional dialogue between Will James and other fictional characters in the film. The court agreed with defendants that the value of The Hurt Locker ”unquestionably derived” from the work of the film’s creators, and not from whatever fame or recognition Sarver had achieved. Id. at 14-15. Thus, the court explained, even assuming that Boal modeled his character on Sarver, the character was so transformed that it became primarily defendants’ expression rather than a portrayal of Sarver’s likeness. The court found that Sarver’s intentional infliction of emotional distress claim also failed because it was based on his misappropriation claim, and because defendants’ acts were neither extreme nor outrageous.
— Defamation and False Light/Invasion of Privacy Claims
As the basis for his defamation claim, Sarver alleged that The Hurt Locker portrayed him as “a bad father, a man who had no respect or compassion for human life and who was fascinated with the thrill of war and death, and a soldier who violated military rules and regulations.” Sarver at 15. Defendants responded that this claim failed because no reasonable person would believe that the film was about Sarver. Agreeing with defendants, the court found that the transformative use defense barred Sarver’s defamation claim. The court explained that the film was clearly a work of fiction, and also noted the disclaimer at the beginning of the film to that effect.
Moreover, the court explained that even if one were to believe that the film was about Sarver, Sarver had not demonstrated that the film was actually defamatory. For example, the court observed that the film portrays James as a loving father with compassion for the Iraqi people. The court found that Sarver’s false light and invasion of privacy claims similarly failed because they were redundant of the defamation claim.
Having determined that Sarver was unlikely to prevail on any of his claims, the court granted defendants’ motion to strike pursuant to California’s anti-SLAPP statute and struck Sarver’s complaint in its entirety.
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