The Hurt Locker decision on appeal

At the time that the trial court had issued its decision, it was arguably unclear how the Ninth Circuit would balance free speech against Sarver’s privacy right.
If, however, that balance was to tilt in favor of the movie industry and free speech and against Sarver, how reconcile that tilting following Keller and Davis in which the Court had reasoned that the characters in the video games performed “the same activity for which they are known in real life?” Didn’t the movie The Hurt Locker likewise depict Sarver in the same activity for which he was known? If “No Doubt offers a persuasive precedent that cannot be materially distinguished,” don’t Keller and Davis do likewise in Sarver’s case?  The Court’s reconciliation of those decisions with Sarver’s case surely surprised all of the parties.  

Thus, initially and surprisingly, the Court in Sarver’s case—after holding that California law, not New Jersey law, applied to the dispute, in part, because of the importance to California of its anti-SLAPP law—reiterated the Metabolife holding that the discovery rules under California’s anti-SLAPP law “collided” with federal procedural rules. Ironically, it did so in order to uphold the timeliness of the defendants’ motion to strike under California’s anti-SLAPP law, since that state law would have barred as untimely the defendants’ motion. The Court held that this timing rule under California’s anti-SLAPP law collided with the federal procedural rule that permitted such a filing. The Court otherwise, though, disregarded the collision, not addressing whether Sarver was entitled to discovery or should be subject to the higher burden of proof imposed by an anti-SLAPP motion. In denying a rehearing in the Trump University case, the Ninth Circuit had effectively foreclosed these arguments—even as it cited the “collision” in order to permit the defendants’ otherwise untimely anti-SLAPP motion.

Turning thereafter to the merits of the motion, the Court, citing Keller, observed,

“California’s anti-SLAPP statute is designed to discourage suits that ‘masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.’”[29]

As in Keller, the Court readily found that the movie The Hurt Locker involved a matter of public interest, namely a portrayal of the war in Iraq and the use of IEDs.

The Ninth Circuit now turned to central issue, namely whether the production of the movie was privileged under the First Amendment. In contrast to Keller and Davis, however, the Court began its discussion with the observation that states may not impose “content-based” restrictions on speech. It said that the U.S. Supreme Court in Zacchini v. Scripps-Howard Broadcasting (1977) had upheld a state right of publicity claim only because the broadcaster had appropriated the entertainer’s entire “cannonball” act, thereby seeking to obtain for free that which had an economic market value. Noting that the Supreme Court had not revisited the appropriate balance between a state right of publicity claim and the U.S. First Amendment (and, in fact, within a month declined to hear the appeal in Davis), the Court described how the Ninth Circuit had “interpreted Zacchini to uphold 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.”[30]

The Court cited, among others, as examples of that interpretation the Keller and Davis cases as well as Hilton v. Hallmark Cards (9th Cir. 2010), in which the image of celebrity Paris Hilton had appeared on greeting cards in a setting similar to a TV episode for which she was known. It also cited White v. Samsung Electronics America Inc. (9th Cir. 1992), where the image of celebrity game show hostess Vanna White was evoked in an advertisement for Samsung electronics in the form of a robot appearing on a set resembling her game show. The White case, according to the Court, advanced “the state’s interest is in preventing ‘the exploitation of celebrity to sell products, and an attempt to take a free ride on a celebrity’s celebrity value.’”

“In sum, our precedents have held that speech which either appropriates the economic value of a performance or persona or seeks to capitalize off a celebrity’s image in commercial advertisements is unprotected by the First Amendment against a California right-of-publicity claim.”[31]

Thus, the Court in footnote 6 further explained that it “need not and do[es] not reach the question of whether such defense [i.e. the “transformative use” defense] applies in this case.”

Hilton uttered - and became associated with - the phrase “that’s hot” while appearing as a waitress in an episode on the TV show The Simple Life.

In 2010 the Ninth Circuit declines to dismiss on free speech grounds Hilton’s right of publicity claim against Hallmark Cards. While finding the birthday card a “spoof”, it holds that the card is not sufficiently “transformative."

Given, however, the Court’s view that a right of publicity claim may prevail over a free speech defense only where the plaintiff demonstrates “an economic value,” the Court readily distinguished Sarver’s appeal from precedent, including Keller and Davis.

“First, The Hurt Locker is not speech proposing a commercial transaction.” …

“Second, and critically, unlike the plaintiffs in Zacchini, Hilton, and Keller, Sarver did not “make the investment required to produce a performance of interest to the public”... or invest time and money to build up economic value in a marketable performance or identity…Rather, Sarver is a private person who lived his life and worked his job. Indeed, while Sarver’s life and story may have proven to be of public interest, Sarver has expressly disavowed the notion that he sought to attract public attention to himself. Neither the journalist who initially told Sarver’s story nor the movie that brought the story to life stole Sarver’s “entire act” or otherwise exploited the economic value of any performance or persona he had worked to develop. The state has no interest in giving Sarver an economic incentive to live his life as he otherwise would.”[32] [emphasis added]

Articulating the dissenting judge’s argument in Keller, while conspicuously not mentioning video games, the Court cautioned against a contrary ruling.

“In sum, 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.”[35] [emphasis added]

In that observation, of course, the Court ironically echoed the “transformative use” test that focused upon whether the likeness or persona is simply one of the “raw materials” or whether the depiction “is the very sum and substance of the work in question.” The Court concluded by returning to its opening discussion that the First Amendment bars “content-based” restrictions on speech.

“If California’s right of publicity law applies in this case, it is simply a content-based speech restriction. As such, it is presumptively unconstitutional, and cannot stand unless Sarver can show a compelling state interest in preventing the defendants’ speech. Because Sarver cannot do so, applying California’s right of publicity in this case would violate the First Amendment.”[34]

The Ninth Circuit’s focus upon an “economic value” is not without precedent. It echoes those copyright fair use decisions in which courts have permitted the appropriation by commercially successful artists of works by less commercially successful artists. The most celebrated example involved the famous artist Richard Prince who had largely appropriated wholesale for his paintings photographs of the largely unknown photographer Patrick Cariou.[35]  In contrast to the trial court that had ordered the destruction of Prince’s unsold canvasses, the Court of Appeals for the Second Circuit held that Prince’s use, in which he had modified the context of Cariou’s photographs, was fair, at least in part because of the commercial value of Cariou’s paintings (sold through the internationally renowned Gagosian Gallery, also a defendant) and the many “wealthy and famous” persons associated with the exhibition of those paintings.

“Prince’s work appeals to an entirely different sort of collector than Cariou’s. Certain of the Canal Zone artworks have sold for two million or more dollars. The invitation list for a dinner that Gagosian hosted in conjunction with the opening of the Canal Zone show included a number of the wealthy and famous such as the musicians Jay-Z and Beyonce Knowles, artists Damien Hirst and Jeff Koons, professional football player Tom Brady, model Gisele Bundchen, Vanity Fair editor Graydon Carter, Vogue editor Anna Wintour, authors Jonathan Franzen and Candace Bushnell, and actors Robert DeNiro, Angelina Jolie, and Brad Pitt. Prince sold eight artworks for a total of $10,480,000, and exchanged seven others for works by painter Larry Rivers and by sculptor Richard Serra. Cariou on the other hand has not actively marketed his work or sold work for significant sums, and nothing in the record suggests that anyone will not now purchase Cariou’s work, or derivative non-transformative works (whether Cariou’s own or licensed by him) as a result of the market space that Prince’s work has taken up. This fair use factor therefore weighs in Prince’s favor.” [emphasis added]

There could be no injury to Cariou given these differing markets. Cariou had included his photographs within a book of photographs, for which Cariou had received relatively little in royalties, and had sold only a few of the photographs themselves and then, too, for relatively little. In contrast, Prince sold his canvasses through the Gagosian Gallery for millions of dollars to the “wealthy and famous.”[36]  

Moreover, like the movie The Hurt Locker, Prince’s canvasses (with a few exceptions), were “transformative,” appropriating Cariou’s photographs so to display a “different aesthetic”—“employ new aesthetics with creative and communicative results distinct from Cariou’s.”

“Where Cariou’s serene and deliberately composed portraits and landscaped photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative…Prince’s composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs…”

Thus, acting as art critic, the Court approved the use by Prince of Cariou’s copyrighted photographs as “raw material.”[37] While permitting the use of another’s copyrighted work—or persona—as “raw material” may advance the public interest, it is troubling that economic value is too often the deciding factor—the less such, the greater the likelihood that it’s in the public interest that others may use this “raw material.”   

Moreover, with the dismissal as a matter of law of Sarver’s primary claim, his right of publicity claim, given his failure to demonstrate an economic value, the Ninth Circuit quickly disposed of his remaining claims, notwithstanding that in the process it resolved factual issues and interpreted as movie critic the content of The Hurt Locker.

U.S. Supreme Court Justice Holmes, who had written about and collected art, over a century ago had famously cautioned against judges acting as art critics.[41]

“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”

In engaging in fact-finding, the Ninth Circuit became the final arbiter of the worth of the respective contributions of the director, screenwriter, and producers, on the one hand, and Sarver’s persona, on the other. Moreover, in the absence of a measurable commercial value, Sarver’s privacy claim, in particular, inevitably failed, his life story mere “raw material” to the movie The Hurt Locker.

The consequences of Sarver’s defeat

For Sarver the consequence of his defeat was immediate. In its penultimate footnote the Court held that “we reject as moot Sarver’s challenge to the district court’s denial of his motion to stay execution and waive bond pending appeal.” In other words, Sarver must pay the defendants’ attorneys’ fees and other costs. At the time that Sarver lost before the trial court, the trial court had assessed $187,000 in expenses. Presumably these are now substantially higher given the appeal, and Sarver will be obligated to pay these, too.

In the long term, however, the Ninth Circuit in holding against Sarver and in favor of Bigelow, Boal and the movie’s producers has reaffirmed the increasingly narrow view of free speech articulated by courts. Admittedly, some courts have broadly interpreted the First Amendment. Thus, for example, in Rosa Parks Rosa and Raymond Parks Institute for Self Development v. Target (11th Cir. 2016) the Court dismissed a right of publicity claim by Rosa Park’s estate based on the presence of her name and likeness on books, a movie and a plaque.

“The use of Rosa Parks’s name and likeness in the books, movie, and plaque is necessary to chronicling and discussing the history of the Civil Rights Movement—matters quintessentially embraced and protected by Michigan’s qualified privilege. Indeed, it is difficult to conceive of a discussion of the Civil Rights Movement without reference to Parks and her role in it. And Michigan law does not make discussion of these topics of public concern contingent on paying a fee. As a result, all six books, the movie, and the plaque find protection in Michigan’s qualified privilege protecting matters of public interest.”[42]

In dismissing the publicity claim brought by Rosa Park’s estate, the Court broadly interpreted the public interest and hence dismissed the estate’s claim, notwithstanding the estate’s commercial interest in controlling Parks’ celebrated persona. Of course, too, famous, African American Rosa Parks is not a commercially important or successful figure, such as the athletes in Keller and Davis.

On the other hand, in dismissing Sarver’s claim, the Court simply, however, disregarded the “public interest” and focused instead on Sarver’s failure to show an economic interest, such as had been demonstrated by the athletes in the Keller and Davis. In summarily finding that “Sarver can[not] show a compelling state interest in preventing the defendants’ speech,” the Court effectively rejected a non-economic argument, such as Sarvers’ intangible interest as a private person to retain his privacy. That intangible interest in privacy can no less, however, represent a “public interest.”

The decision is unsettling insofar as it raises but fails to answer numerous questions.

Equally important, does Sarver’s lawsuit even fall within the purpose of “California’s anti-SLAPP statute [that] is designed to discourage suits that ‘masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so?’”  In bringing his lawsuit, it’s hard to imagine that Sarver sought to deter or punish the filmmakers from exercising their legal rights under the First Amendment. Sarver is more akin to Don Quixote tilting against the Hollywood Windmill.

Contrast Sarver’s lawsuit with the Trump University case. In Trump University the plaintiffs had alleged in their class action lawsuit that Trump University had engaged in “deceptive business practices” in promoting its real estate investing seminars. Trump University responded with a counterclaim for defamation against lead plaintiff Makaeff in which it alleged that Makaeff had defamed the University through her statements about the University in letters and Internet postings. As a result of her appeal to the Ninth Circuit, Makeaff successfully dismissed that counterclaim under California’s anti-SLAPP law, resulting in an award of $790,000 in expenses. Nevertheless, in early 2016 she withdrew as class action representative. According to the trial court, she did so for the following reasons:

“Makaeff seeks to withdraw because of the personal and professional toll that the case has taken on her, arguing that she suffered ‘tremendous stress and anxiety’ during the litigation of Defendants’ defamation counterclaim, and that Trump’s use of his ‘bully pulpit’ to continue to publicly criticize Makaeff has affected her work opportunities…In addition, she expresses concern that involvement with a ‘high-profile trial’ will exacerbate her existing health problems, take her away from family obligations, and cause her to ‘miss too much work as she attempts to transition into a new career.’”[44]

An anti-SLAPP law seeks to prevent the type of bullying that Makeaff experienced. Sadly, however, the $790,000 award proved insufficient in the face of that and other bullying suffered by Makeaff.

His attacks include citing Judge Curiel’s Mexican ancestry as an “inherent conflict of interest” given Trump’s advocacy of the erection of a wall between Mexico and the United States. US District Judge Curiel orders the public disclosure of selected, confidentially designated material, since Trump has made an issue of the integrity of the judicial proceedings.

That Sarver is equated with Trump University under California’s anti-SLAPP law suggests that either the law needs fine-tuning or that it has been tortuously interpreted. It is difficult to imagine Sarver attacking the judges in his case in the same way that Donald Trump (a later named defendant in the Trump University case) has publicly excoriated the trial judge, including his ancestry, in his.[45]

Interestingly, the players' unions for the major professional sports leagues, including the NFL, apparently submitted their own brief in support of Sarver’s request for a rehearing of his appeal.[46] They objected to the Ninth Circuit’s view that the “right-of-publicity laws impose a content-based restriction on speech” and, as such, argued that the decision “threatens to upend the rights and expectations underlying the well-established…commercial markets for goods and services depicting athletes, celebrities and other public figures.” They also, however, implicitly expressed concern about the court’s reliance upon an economic interest analysis in determining whether to uphold a right of publicity claim:  

“Limiting the right of publicity to individuals motivated by a desire for fame would add a subjective component that has never before been required, and would deny publicity rights, for example, to world-class professional athletes motivated by their love for their sport or desire to compete, or Nobel-winning scientists motivated by scientific curiosity or altruism.”

In other words, the Ninth Circuit’s opinion might foreclose claims by public figures who had not sought to exploit—or had not yet fully developed, let alone exploited—their potential market. Interestingly, Sarver might have benefited from that more expansive view of the right of publicity. Given the earlier publication in Playboy of an article authored by Boal that focused upon Sarver’s service record in Iraq,[47] Sarver was arguably an “involuntary public figure.” Was Sarver, therefore, not entitled to benefit commercially from that notoriety?[48] 

Free speech is in the public interest and a right, like copyright, expressly guaranteed under the U.S. Constitution. Yet the public interest in limiting speech in certain contexts should surely not be wholly defined by the economic interest of the person seeking to do so. Significantly, in contrast to free speech, privacy in the U.S. has only slowly developed under judicial common law[49] as well as state and federal statutory laws. Indeed, in contrast to other countries,[50] the U.S. places a lesser value on privacy than on free speech. Thus, California’s right of publicity, one among the four traditional types of privacy rights under state law,[51] reflects a slowly developing public interest in protecting the individual’s privacy.

While the Ninth Circuit observes that Sarver has “not exploited the economic value of any performance or persona he had worked to develop,” Louis Brandeis advocated over 100 years ago for a right to privacy that encompassed a “right to be let alone.” 

Brandeis and Samuel Warren defined the “Right of Privacy” in their seminal article in The Harvard Law Journal (1890).

As observed by Louis Brandeis and Samuel Warren in their seminal, 1890 article that first articulated the “right of privacy,” privacy no less than copyrights—or other forms of intellectual “property”—is not wholly understood as a form of “property” measurable by its economic value.

“[I]t may now be considered settled that the protection afforded by the common law to the author of any writing is entirely independent of its pecuniary value, its intrinsic merits, or of any intention to publish the same, and, of course, also, wholly independent of the material, if any, upon which, or the mode in which, the thought or sentiment was expressed. …”

“[T]he protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone.”[52]

As Brandeis elaborated in his dissenting opinion as a U.S. Supreme Court Justice in Olmstead v U.S. (1928), in which the majority had upheld wiretapping by the police that had led to the discovery of the defendants’ conspiracy to violate the U.S. prohibition on the sale of alcoholic beverages:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”[53] [emphasis added]

According to this view, the “right to be let alone” with its protection of the individual’s “thoughts, sentiments and emotions” is the most fundamental of rights of a civilized society.

The NSA continues to exercise its surveillance from a sprawling headquarters in Maryland. It also stores vast amounts of data in its recently constructed data center in Utah.
The US government criminally prosecuted political activist Aaron Swartz for his massive downloading of copyrighted academic journals. In 2013 Swartz commits suicide when the government rejects his plea bargain counteroffer.  The Trans-Pacific Partnership is a “free trade agreement” that would would expand globally the US’s IP protections, including “locks” for the movie industry’s assets.

Today electronic surveillance is ever more intrusive—both by government and private industry. [54]. Moreover, the rights of U.S. copyright owners is ever more expansive—through both the lengthy duration of copyrights (the life of the author plus 70 years) and the sanctions, including criminalization, imposed upon those who break the electronic “locks” controlling access to digital content.[55] In that context, Sarver’s defeat again reminds us that not all is measurable or should be defined by its economic value. The public interest often lies elsewhere.

The consequence of failing to acknowledge that interest with the resulting disillusionment was ironically well expressed by the supposedly fictional Sgt. William James in speaking to his uncomprehending, baby son.

“You love playing with all your stuffed animals. You love your mommy, your daddy. You love your pajamas. You love everything, don't ya? Yeah. But you know what, buddy? As you get older, some of the things that you love might not seem so special anymore, you know? Like your Jack-in-a-Box. Maybe you'll realize it's just a piece of tin and a stuffed animal, but the older you get, the fewer things you really love. And by the time you get to my age, maybe it's only one or two things. With me, I think it's one.”

Sheltered as a result of his many tours of duty in Iraq and only relatively recently retired from the U.S. army, Jeffrey Sarver surely now knows that in the contemporary world of adults it’s the money that counts; all else is tin. It is poetically appropriate that Bigelow’s The Hurt Locker opens with the quoted observation that “the rush of battle is often a potent and lethal addiction, for war is a drug” and that it ends with Sarver’s doppelganger, William James, addictively returning to Iraq rather than endure the adult world symbolized by the supermarket aisle of endless cereal boxes.

Representative of that adult world and its movie industry, in particular, the MPAA would likely argue that the stories that movies tell are not to be taken seriously and hence are not part of that adult world.  Audiences know that they aren’t real, are merely entertainment, and count for nothing—other than, of course, the revenues resulting from their box office scores. As Jack Valenti, the MPAA’s celebrated long-term president, in fact, argued years ago, movies are a “huge and valuable American asset,[56]” valuable commodities that are among the United States’ most successful industries, like the endless boxes of nutritionless cereal stacked on aisle shelves, and must be protected. That is today’s prevailing view. In the U.S. free speech too often sadly follows the money, and privacy is lost in the noise of the commercial marketplace.

In the movie world of The Hurt Locker Sgt. William James warns his baby son, “As you get older, some of the things that you love might not seem so special anymore, you know? Like your Jack-in-a-Box. Maybe you'll realize it's just a piece of tin and a stuffed animal, but the older you get, the fewer things you really love.” Bigelow and Boal in the meantime continue to recreate and commercialize history, announcing in 2016 the subject of their next movie – the 1967 Detroit race riots.