The Hurt Locker and the Right of Publicity

You may remember The Hurt Locker as a 2010 Oscar winner about an army bomb squad.

But intellectual property lawyers may well remember The Hurt Locker as the case that expanded filmmakers' free speech rights.

On February 17th, 2016, the 9th Circuit rendered an opinion - in a case brought by Master Sgt. Jeffrey S. Sarver, an Iraqi war bomb squad veteran who claimed The Hurt Locker's lead character, Will James, was based on his life. The case turned on Master Sgt. Sarver complaints that (even though he had no contract entitling him to money from the filmmakers) he felt cheated out of "financial participation" in the film. To legally justify his claim for millions of dollars, Master Sgt. Sarver argued that the filmmakers had infringed his publicity rights (more on those below) and defamed him. In 2011, Master Sgt. Sarver lost his case at the trial level. But he appealed. Which lead to the 9th Circuit's Feb. 2016 opinion - a decision which may well result in an expansion of the rights filmmakers can claim in the retelling of real life stories under the First Amendment.

Here's an excerpt of what that California Federal Appeals Court had to say about The Hurt Locker case - and about the tension between an individual's rights to exploit their own fame and a filmmakers' free speech rights:

"The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life - including the stories of real individuals, ordinary or extraordinary - and transform them into art, be it articles, books, movies, or plays."

In reaching that conclusion, the Court had to consider California's "publicity rights" law - a law that protects an individual's right to commercially exploit their name, likeness and reputation.

These right of publicity laws (there is no Federal statute protecting these interests, only a patchwork of state laws) has only been addressed by the U.S. Supreme Court once, in 1977. 

In that case (Zacchini v. Scripps-Howard Broadcasting Co.) a local TV news crew filmed and broadcast an entire circus act. 

In the Zacchini case, the high Court agreed with the creators of the human cannonball act: Allowing a TV station to broadcast an entire performance (as newsworthy?) would undermine the performer's ability to commercially exploit that act in the future. 

To reach their (apparently contradictory?) decision in The Hurt Locker case, the 9th Circuit was at pains to narrow Zacchini's holding, ruling that the Zacchini decision only upholds "the right of publicity in a variety of contexts where the defendant appropriates the economic value that the plaintiff has built in an identity or performance." 

In other words, the right of publicity doesn't cover everyone interested in exploiting their real life stories in the media. 

After The Hurt Locker case, show biz professionals are still covered by the right of publicity. For example, celebrities can still challenge the unpermissioned use of their images in advertising (as when singer Tom Waits sued Lays for using his onstage persona to sell potato chips or when Wheel of Fortune hostess Vanna White sued over an ad for VCRs). 

But apparently private citizens have a much more limited ability to sue filmmakers who use real life events to tell important stories.  

In The Hurt Locker case, the 9th Circuit ruled that 1) where an informative piece of entertainment is based on real life events and 2) where the depiction is neither false nor offensive enough to be actionable (e.g., causes emotional distress that sends the plaintiff to the hospital) and 3) where the plaintiff has not been engaged in consciously building up economic value in a marketable performance or identity, then 4) artists like filmmakers can proceed without paying the person or persons who are the inspiration for a film or play. 

In other words? If you aren't a professional (or a big-time college athlete?) who has been building a brand around your identity or acts, you may not be able to demand money from filmmakers who've used elements of your real life to create a film. At least under a "right of publicity" theory. 

Bottom line? When a real-life story of legitimate public interest is retold in a film or play, and the facts of the subject's life are not colorably part of that person's entertainment industry career and are not construed in ways that are false or irreparably damaging to the real life person's ability to function (e.g., damaging to their health or in finding future work), then it seems filmmakers have a much clearer path to making art based on real life than they did before Master Sgt. Sarver tried to cash in.

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