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Media Alerts - Sgt. Jeffrey S. Sarver v. Nicolas Chartier
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March 16, 2016
  Sgt. Jeffrey S. Sarver v. Nicolas Chartier
Headline: California's Anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute precluded a right-of-publicity claim arising out of the film The Hurt Locker on the grounds that the film involved an issue of public concern and the plaintiff failed to state and substantiate a legally sufficient claim.

Area of Law: California's anti-SLAPP statute, Right of Publicity

Issues Presented:
Did the act or acts of which the plaintiff complained of involve a matter of public concern under California's Anti-SLAPP statute?

Was the plaintiff able to demonstrate his right-of-privacy claim was legally sufficient with a reasonable probability of prevailing on his claim?

Brief Summary: A journalist wrote an article focusing on Sargent Sarver's life and experiences during the Iraq War and within his Army unit. The journalist later wrote the screenplay for the film that became The Hurt Locker. Sargent Sarver alleged he never consented to the use of his name and likeness in the article or film, that the way he was portrayed harmed his reputation, and thus filed various claims - including a right of publicity claim. The defendants filed a motion to strike Sarver's complaint under California's anti-SLAPP statute. The district court granted the motion on the grounds that (1) the defendants' speech was a matter of public concern and thus protected by the First Amendment, and (2) the film's use of Sarver's identity was transformative. Applying the anti-SLAPP statute's two-step approach, the Ninth Circuit panel affirmed, holding that (1) because the Iraq War was a matter of public concern and (2) Sarver could not state and substantiate a legally sufficient right of publicity claim, the lower court did not err in granting the defendants' anti-SLAPP motions.

Significance: In matters of public concern, journalists, screenplay writers, and other artists may transform the stories of real individuals into art - be it articles, movies, or plays - so long as the speech does not appropriate the economic value of a performance or persona, nor seek to capitalize from a celebrity's image in commercial advertisements.

Extended Summary: Plaintiff Sarver was a Sargent in the United States Army during the Iraq War. In December 2004, journalist Mark Boal was embedded in Sarver's unit, which was stationed in Iraq and whose principal duty was to dispose of improvised explosive devices (IEDs). Boal spent a significant amount of time following Sarver, observing him while on and off duty, taking pictures and video of Sarver, and interviewed Sarver once he was back in the States.

In August 2005, Boal wrote an article focusing on Sarver's life and experiences in Iraq and had it published in Playboy. A condensed version was published in Reader's Digest. Boal later wrote the screenplay for the film that became The Hurt Locker. Sarver alleges (1) he never consented to the use of his name or likeness in either of the articles, (2) he attempted to remove portions of the article before its publication in Reader's Digest, (3) the movie's main character mirrored his life story, and (4) that the portrayal of the movie's main character falsely portrayed him in a way that harmed his reputation.

In March 2010, Sarver filed suit in the District Court of New Jersey against Boal, the film's director, its producer(s), and other corporate defendants. The complaint alleged misappropriation of Sarver's likeness and right of publicity, false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and negligent misrepresentation. The case was transferred to the Central District of California pursuant to 28 U.S.C. § 1404(a).

On February 1, 2011, the defendants filed a motion to strike Sarver's complaint under California Civil Procedure Code § 425.15, California's Anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute. For the defendants' anti-SLAPP motions to succeed, they must first show that "'the act or acts of which the plaintiff complains were taken in furtherance of [the defendants']right of petition or free speech under the United States or California Constitution in connection with a public issue."' Second, if defendants satisfy this initial burden, the burden shifts to the plaintiff to "establish a reasonable probability that the plaintiff will prevail on his or her . . . claim." Id. In other words, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" Hilton v. Hallmark Cards, 599 F.3d 18 SARVER V. CHARTIER 894, 903 (9th Cir. 2009) (quoting Wilson v. Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal. 2002)). The district court granted defendants' motion concluding that California's anti-SLAPP statute applied because the defendants were engaged in the exercise of free speech in connection with a public issue, and also that "[e]ven assuming that [Sarver] and Will James share similar physical characteristics and idiosyncrasies, a significant amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie."

Sarver timely appealed to the U.S. Court of Appeals for the Ninth Circuit. Before addressing the merits of Sarver's claim, the Ninth Circuit panel had to determine (1) whether the district court properly applied California law instead of New Jersey law, and (2) whether the defendants' anti-SLAPP motion was timely filed.

The Ninth Circuit panel concluded that the district court did not err in applying California law under the Restatement (Second) of Conflict of Laws sections 6 and 145. The panel held that California had the most significant relationship to the current litigation, which would be sufficient to overcome any presumption of Sarver's domicile, whatever Sarver's domicile may have been. The panel also rejected Sarver's contention that defendants' anti-SLAPP motion was not timely filed, holding that the motion was timely filed under Federal Rule of Civil Procedure section 56(b). The panel explained that, when a procedural state law directly collides with a Federal Rule of Civil Procedure, district courts are not obligated to adhere to the procedural state law.

In determining the merits of the defendants' anti-SLAPP motions, the first issue was whether the act or acts, of which the plaintiff complained, involved a matter of public concern and thus qualified as protected speech under the United States Constitution or the California Constitution. Sarver attempted to narrow the issue by arguing that the acts were not of public concern since he was not personally in the public's eye before the film. The panel identified three categories of public issues - including topics that are of widespread, public interest - and held that the Iraq War and the use of IEDs was a matter of significant and sustained public attention. The court held that, because the focus was on Sarver's conduct and experiences during the Iraq War, California's standard for finding an issue of public concern was met.

The panel then considered whether Sarver was able to demonstrate that his right-of-privacy claim was legally sufficient with a reasonable probability of prevailing on his claim. After reviewing past decisions involving right of publicity claims, the panel held that Sarver was unable to state and substantiate a legally sufficient right of publicity claim on the grounds that the challenged speech (1) did not exploit the economic value of any performance or persona Sarver had worked to develop, (2) is not proposing a commercial transaction, and (3) took the raw materials gathered about Sarver's life and Iraq experiences and transformed them into an artistic movie.

The panel further ruled that, even if California's right of publicity law would apply in this case, it would be a content-based restriction and thus unconstitutional without a showing of a compelling state interest in preventing the defendants' speech.

To read full opinion, please visit:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/17/11-56986.pdf

Panel: Diarmuid F. O'Scannlain, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges.

Argument Date: May 9, 2013

Date of Issued Opinion: February 17, 2016

Docket Number: No. 11-56986

Decided: Affirmed.

Case Alert Author: Melissa A. Padilla

Counsel:

Michael R. Dezsi (argued), Law Office of Michael R. Dezsi, PLLC, Detroit, Michigan, for Plaintiff-Appellant.

Jon-Jamison Hill, Kahan & Gorry, Beverly Hills, California; and Jeremiah T. Reynolds, Kinsella Weitzman Iser Kump & Aldisert LLP, Santa Monica, California (argued), for Defendant-Appellee.

Author of Opinion: Hon. Diarmuid F. O'Scannlain

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 03/16/2016 06:21 PM     9th Circuit  

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