Monday, December 11, 2023

Ninth Circuit affirms dismissal of Army Sergeant’s “Hurt Locker” right of publicity claim

The right of publicity in California prohibits appropriating a public figure’s likeness for commercial purposes without consent. Unfortunately for U.S. Army Sergeant Jeffrey Sarver, the 9th Circuit this week upheld the dismissal of Sarver’s right of publicity claim against the makers of “The Hurt Locker,” on the grounds that any claim Sarver might have to ownership of his likeness was trumped by the film’s First Amendment protections.

Server claims that the film’s lead character, a bomb-disposal technician, is based on him. While it appears Sarver has a strong right of publicity claim—the film’s screenwriter shadowed Sarver in Iraq and published an article on Sarver’s life and experiences in 2005 titled “The Man in the Bomb Suit”—the 9th Circuit didn’t have to address whether Sarver could prove his case because the court found it was barred by the First Amendment.

The court explained that it does not protect against a right of publicity claim where the defendant has either (1) appropriated the economic value of a persona or (2) sought to capitalize off a celebrity’s image in commercial advertisements. The court reasoned that (1) the film makers did not exploit the economic value of any persona that Sarver had developed because Sarver had made no investment to build up any economic value in a marketable identity, and (2) the film is not speech proposing a commercial transaction. Thus, the court held that the film was fully protected by the First Amendment, and applying California’s right of publicity law would be an unconstitutional limitation on free speech.

This decision shows a trend in appeals courts favoring Hollywood over individuals, finding First Amendment freedom of speech defeats a person’s claims to their image or story.


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