JUMP CUT
A REVIEW OF CONTEMPORARY MEDIA

copyright 2016, Jump Cut: A Review of Contemporary Media
Jump Cut
, No. 57, summer 2016

The Hurt Locker litigation: an adult’s story—part 2

by Robert Alpert

The U.S. Supreme Court famously declared in Marbury v. Madison (1803) that the “[g]overnment of the United States has been emphatically termed a government of laws, and not of men.”[1][open endnotes in new window] It also, however, observed that it “is emphatically the province and duty of the Judicial Department [that is, the courts] to say what the law is.” Thus, while holding that the U.S. Constitution overrides any other law, the Court also held that the U.S. Supreme Court is the final arbiter of what the U.S. Constitution means, thereby, not incidentally, granting to itself the final say over the other two branches of government, Congress and the President, as to the interpretation of this supreme law. Tellingly, however, the Supreme Court in Marbury also famously observed, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.” Thus, government “will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” Now, over 200 years later this same Court effectively has offered no remedy in affirming the sanctity of corporate contracts that compel arbitration and bar class actions.[2] Laws, including their judicial interpretation, are inevitably constructs of cultural values. 

Judges, both in applying the rule of law and in deciding what the rule of law is, approach the law with cultural biases. As such, judicial opinions are as much an art as a science and inevitably reflect such biases.  Those on the left are pleased when the U.S. Supreme Court finds a right of privacy in the U.S. Constitution and hence invalidates laws that bar or unnecessarily restrict abortion.[3] Those on right, however, are equally pleased when the U.S. Supreme Court interprets the right of free speech in the U.S. Constitution as sufficiently broad so as to invalidate laws that bar or unnecessarily restrict the right of corporations to express their opinions by contributing financially to political campaigns.[4] Both decisions reflect how judges reach their decisions based on cultural ideology, drawing support for their decisions from carefully selected precedent. While law and morality are not the same, both arise from intangible, cultural values—values that are often assumed but unstated.

The Court of Appeals for the Ninth Circuit’s recent decision involving Staff Sergeant Jeffrey Sarver’s lawsuit against the creators and producers of the movie The Hurt Locker reflects the greater value the United States places upon money and free speech at the expense individual privacy. In this case, if the judicial bias was reasonably clear, nevertheless support was arguably difficult to find given the intervening precedential decisions. Faced with those decisions, the opinion in The Hurt Locker case tilts in favor of free speech while also making explicit, however, the commercial element of free speech in what is often described as the “marketplace of ideas.”[5]

The movie The Hurt Locker, which Kathryn Bigelow had directed, was released in the United States in June 2009. In March 2010 Bigelow as well as the movie’s screenwriter, Mark Boal, received Oscars for Best Directing and Best Screenwriting (Original Screenplay), respectively. The Academy also awarded the movie an Oscar for Best Picture. On the eve of these awards, Staff Sergeant Jeffrey Sarver sued Bigelow, Boal and the producers of the movie in federal court in New Jersey. He alleged, in essence, that Boal had been embedded with Sarver’s explosive ordinance disposal (”EOD”) unit that undertook the daily task of disarming in Iraq improvised explosive devices (“IEDs”) and that the movie in its depiction of Sergeant William James (played by Jeremy Renner) had appropriated Sarver’s life in the U.S. army as the team leader of that unit.  As such, the defendants had invaded his privacy; in particular, they had violated his “right of publicity” by commercializing his life story as well as, among other claims, casting him in a false light.

Following the transfer of the lawsuit from New Jersey to California, the federal trial court in Los Angeles on October 13, 2011, dismissed all of Sarver’s claims under California’s anti-SLAPP law,[6] a law that seeks to protect against the chilling effect on free speech rights of frivolous lawsuits. SLAPP is an abbreviation for “Strategic Lawsuit Against Public Participation,” and a SLAPP lawsuit is intended to silence speech by imposing the expense of litigation on the speaker.

In contrast, an anti-SLAPP law seeks to prevent this by imposing special procedural requirements on those bringing such suits. In California the filing of a motion to dismiss under the anti-SLAPP law automatically stays discovery, and it may result in the party bringing the lawsuit having to demonstrate a probability of success without the benefit of discovery. California’s anti-SLAPP law may also impose sanctions on the party bringing the lawsuit, namely the payment of the defendant’s expenses if the suit is successfully dismissed. In dismissing Sergeant Sarver’s claims prior to his taking any discovery, the trial court held that his right of publicity claim, in particular, was barred as a matter of law. The court ruled that the movie in its depiction of events was the type of “transformative use” that is protected as free speech by the First Amendment of the U.S. Constitution. The trial court also ordered Sarver to pay the defendants’ litigation expenses of $187,000.

Sarver appealed that decision to the U.S. Court of Appeals for the Ninth Circuit. The Motion Picture Association of America (MPAA) that represents the movie industry joined the defendants as amicus curiae in seeking an affirmance of the trial court’s decision. The MPAA argued for a broad application of the First Amendment in right of publicity cases brought against movies. By May 2013 the parties had fully submitted their briefs as well as argued the merits of their position. A more detailed discussion of these initial proceedings, both those before the trial court and the appellate filings, may be found in part 1 of “The Hurt Locker litigation: an adult’s story,” Jump Cut, No. 54 (Fall 2012).

Nearly three years later, on February 17, 2016, the Ninth Circuit issued a unanimous opinion, Sarver v. Chartier (9th Cir. 2016), in which it affirmed the trial court’s decision.[7] It strikingly affirmed the trial court on grounds that none of the parties had argued. The reasoning of its opinion underscores the importance of commerce in the “marketplace of ideas.” A few months later, on April 22, 2016, the Court also denied Sarver’s request for a rehearing or an en banc consideration of his appeal.[8]

The lengthy history leading to the decision on appeal

Why the delay of several years in issuing this unanimous opinion?

The delay is, in part, explained by the Ninth Circuit’s order on May 9, 2013, in which it expressly deferred issuing any opinion on Sarver’s appeal “pending the disposition of the petition for rehearing en banc in Makaeff v. Trump University, LLC.”[9] That case involved a class action lawsuit in which the lead plaintiff and others alleged that Trump University had induced them to pay tuition for real estate investment seminars based on fraudulent advertising claims. The rehearing at issue, if granted, sought to challenge California’s anti-SLAPP law. In fact, however, the Ninth Circuit denied that rehearing in November 2013.

The delay is also, therefore, explained, in part, by two intervening opinions on the right of publicity, Keller v. Electronic Arts (9th Cir. 2013) and Davis v. Electronic Arts (9th Cir. 2015). Both cases involved athletes’ right of publicity claims against a video game maker, and both opinions, in construing a First Amendment defense, found against the video game maker. These decisions cast doubt on the grounds for the trial court’s decision in Sarver’s case. Thus, the Ninth Circuit on October 29, 2013,

“further deferred [the appeal in Sarver’s case] pending the disposition of the petitions for certiorari [filed by the video gamer maker before the U.S. Supreme Court] in Keller v. Electronic Arts Inc. (In re NCAA Student Athlete Name & Likeness Licensing Litig.).”[10]

While the plaintiff athletes in Keller had settled with the defendants by mid-2014,[11] a petition for certiorari in Davis remained pending. Nevertheless, on the eve of Christmas, the Ninth Circuit restored Sarver’s appeal for consideration and decision in response to Sarver’s request on December 3, 2015 inquiring about the status of his appeal.[12]

The Trump University case, the initial basis for the suspension for Sarver’s appeal, seemed on its face an odd reason to defer a decision. In response to the class action alleging fraud, Trump University had counterclaimed against the lead plaintiff, Tarla Makaeff, for defamation. The Court of Appeals had reversed the trial court’s decision on defendant Trump University’s counterclaim, holding that Trump University was a “limited public figure” so that Trump University must meet a higher standard, namely “actual malice,” if it were to prevail in its defamation counterclaim. On that particular ground the Court remanded the case back to the trial court to determine whether under that higher standard Trump University had a reasonable probability of success in defeating the plaintiff Makeaeff’s anti-SLAPP motion.

Significantly, however, two of the judges in Trump University also issued a joint, concurring opinion in which they openly questioned the correctness of United States ex rel. Newsham v. Lockheed Missiles & Space Co. (9th Cir. 1999) and those cases that had followed that decision.  According to these concurring judges, Lockheed had incorrectly held that California’s anti-SLAPP law did not “collide” with the procedures of—and could be applied in—federal courts by permitting a motion to strike and awarding attorney’s fees in the context of such a motion. In other words, they questioned the underpinning of the anti-SLAPP law that had resulted in the summary dismissal of Sarver’s lawsuit.

The Ninth Circuit in November 2013 in a sharply divided opinion rejected the proposed rehearing of the Trump University appeal. In denying the rehearing, the prevailing judges reasoned:

“…California’s anti-SLAPP statute seeks to limit frivolous suits brought primarily for the purpose of chilling the valid exercise of First Amendment rights. ….”

“Through anti-SLAPP laws, the legislatures of Arizona, California, Guam, Hawaii, Nevada, Oregon, and Washington have decided to impose substantive limitations on certain state law actions…Refusing to recognize these limitations in federal court is bad policy. If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.”[13]

In contrast, based on a lengthy and technical analysis of federal court procedures, the dissenting judges reasoned:

“California’s anti- SLAPP statute impermissibly supplements the Federal Rules’ criteria for pre-trial dismissal of an action. …”

“Any attempt to impose a probability requirement at the pleading stage would obviously conflict with [Federal Civil Procedure] Rule 12. Yet that is exactly what California’s anti-SLAPP statute does. It bars an action from proceeding beyond the pleading stage ‘unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.’ …”

“Similar problems plague the interaction between California’s anti-SLAPP statute and [Federal Civil Procedure] Rule 56. Motions to strike almost invariably require consideration of matters outside the pleadings, and in those circumstances the Federal Rules state that ‘the motion must be treated as one for summary judgment under Rule 56.’…The anti-SLAPP statute eviscerates Rule 56 by requiring the plaintiff to prove that she will probably prevail if the case proceeds to trial—a showing considerably more stringent than identifying material factual disputes that a jury could reasonably resolve in the plaintiff’s favor.”[14]

Not surprisingly, the dissenters cited Metabolife International, Inc. v. Wornick (9th Cir. 2001). In that case the Ninth Circuit had noted the “collision” between the discovery normally permitted in federal courts and the stay of discovery automatically imposed as a result of the application of California’s anti-SLAPP law in the context of a motion to dismiss, such as the one successfully argued in Sarver’s case and that had barred his taking discovery.   

In essence, the prevailing judges relied upon their view that California’s anti-SLAPP law promoted free speech in preventing frivolous lawsuits against the media and that states may fashion the scope of rights for such laws that the states have themselves enacted. In contrast, the dissenting judges tilted in favor of due process under the federal procedural rules and their view that federalism requires that state rights yield to such rules. This differing view is reflected in the arguments in Sarver’s case. Bigelow, Boal, and their Hollywood producers had argued that California’s anti-SLAPP law protects free speech by requiring a higher bar so as to prevent an encroachment upon creativity. In contrast, Sarver had argued his entitlement under federal rules to take discovery so as to develop an evidentiary record for his claims. In denying the rehearing in the Trump University case, the Ninth Circuit, in effect, sided with the defendants.

The Trump University case, however, does not wholly explain the three-year delay. The delay is also explained by the Ninth Circuit’s decisions in Keller v. Electronic Arts (9th Cir. 2013), issued only a few months after suspending Sarver’s appeal based on the Trump University case, and in Davis v. Electronic Arts (9th Cir. 2015). Both decisions ran contrary to the reasoning of the trial court’s decision in Sarver’s case.

In the Keller case the Ninth Circuit acknowledged that video games “are entitled to the full protections of the First Amendment,” citing the U.S. Supreme Court’s unequivocal holding in Brown v. Entertainment Merchants Association (2011) that video games are entitled to the same protection of free speech under the First Amendment as all other communications media, including movies.[15] The Ninth Circuit then succinctly summarized the facts:

“Samuel Keller was the starting quarterback for Arizona State University in 2005 before he transferred to the University of Nebraska, where he played during the 2007 season. [Electronic Arts or] EA is the producer of the NCAA Football series of video games, which allow users to control avatars representing college football players as those avatars participate in simulated games. In NCAA Football, EA seeks to replicate each school’s entire team as accurately as possible.”[16]

While readily finding that Keller’s “suit arises from an act by [EA] made in connection with a public issue in furtherance of [EA’s] right to free speech,”[17] the Court went on to find, however, that Keller had established a “reasonable probability that [he] will prevail on his…claim…by a prima facie showing of facts…”[18] According to the Court, Keller made that showing, since EA’s use of Keller’s image was not “transformative”—and hence was not privileged as free speech—but instead potentially violated Keller’s right of publicity. Whether a work is “transformative” depends, according to precedent established by the California Supreme Court[19] and followed by the Ninth Circuit, on

“whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.”

In this case the Court analogized to the precedent of a state court case, No Doubt v. Activision Publishing (Ca. Ct. App. 2011), in which the defendant Activision’s Band Hero video game was found not transformative by enabling users to simulate performing rock bands, including the band No Doubt. In effect, the video game added nothing to the depiction of the rock bands but simply duplicated their performance in the form of a video game. The Ninth Circuit in Keller observed that as in No Doubt

“[u]sers manipulate the characters in the performance of the same activity for which they are known in real life—playing football in this case, and performing in a rock band in Band Hero. …”

“We believe No Doubt offers a persuasive precedent that cannot be materially distinguished from Keller’s case.”[20]

The Court drew further support for its holding by noting that another U.S. Court of Appeals, the Third Circuit, had likewise found EA’s video game under the same facts was not transformative and hence not protected by free speech.[21] The Ninth Circuit summarized:

“Given that NCAA Football realistically portrays college football players in the context of college football games, the district court was correct in concluding that EA cannot prevail as a matter of law based on the transformative use defense at the anti-SLAPP stage.” [22]

Moreover, in reaching its conclusion, the Court also implicitly expressed its skepticism about video games as a medium of communication. Thus, the Court rejected a separate defense by EA that it was entitled to the statutory defense under California law as the publisher or reporter of newsworthy items.

“We think that…EA is not publishing or reporting factual data. EA’s video game is a means by which users can play their own virtual football games, not a means for obtaining information about real-world football games…Put simply, EA’s interactive game is not a publication of facts about college football; it is a game, not a reference source. These state law defenses, therefore, do not apply.” [23]

Thus, the Court acknowledged that video games generally are entitled to protection under the First Amendment and that the video game in this particular instance duplicated as accurately as possible the factual characteristics of Keller and other athletes. At the same time, the Court limited the scope of that protection given that video games entertain rather than serve, in its view, as a “reference source.”[24]

Examining EA’s video game, the dissenting judge reached a contrary conclusion, finding that the creative, transformative elements predominated. Significantly, his reasoning makes the very arguments that the defendants and the MPAA had made in Sarver’s appeal, an appeal that the Ninth Circuit had in the meantime suspended.

“The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.”[25]

Thus, for example, the MPAA had argued in Sarver’s case that motion pictures, like books and other writings throughout history, draw upon “actual events and people,” identifying such well-known films as The King’s Speech, Erin Brockovich, The Perfect Storm and The Social Network, and that if Sarver’s claim were upheld, then numerous films would never have been made, such as Citizen Kane, Saving Private Ryan or Titanic.

Given the majority’s holding in Keller, it was inevitable that two years later in 2015 the Ninth Circuit in the Davis case would reaffirm that the right of publicity claims of professional athletes, as opposed to the college athletes in Keller, prevail over the free speech rights of the same video game maker. Consistent with Keller, the Ninth Circuit held that

“…EA’s use of the former players’ likenesses is not incidental, because it is central to EA’s main commercial purpose—to create a realistic virtual simulation of football games involving current and former NFL teams.”[26]

In Davis the professional athletes consisted of “Michael Davis and Billy Joe Dupree, as well as roughly 6,000 other former [National Football League or] NFL players who appear on more than 100 historic teams in various editions of Madden NFL.”[27] Not distinguishing between college and professional athletes given their common commercial interest in being compensated,[28] the Court, not surprisingly, upheld the professional athletes’ claims, since the depiction of these athletes was central to the performance and narrative of the video game.

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.”

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, while 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. 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. 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.

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.

Notes

 1. Marbury v. Madison (1803) accessed on July 5, 2016, https://supreme.justia.com/cases/federal/us/5/137/case.html.

2. American Express v. Italian Colors Restaurant (2013)(upholding the contract between American Express and merchants that mandated arbitration and barred class action lawsuits, notwithstanding the claim that such an agreement violated the U.S. anti-trust laws and effectively barred individual merchants from obtaining relief given the expense of non-class action arbitration), accessed July 5, 2016, http://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf.

3. See, for example, Roe v. Wade (1973), accessed July 5, 2016, http://caselaw.findlaw.com/us-supreme-court/410/113.html.

4. Citizens United v. Federal Election Commission (2010)(invalidating under the First Amendment a ban on certain corporate financial contributions to political campaigns), accessed July 5, 2016, http://www.supremecourt.gov/opinions/09pdf/08-205.pdf.

5. While the concept of an open marketplace of ideas can be traced back centuries to John Milton’s Areopagitica (1644), the view that the First Amendment encourages a “marketplace of ideas” originated in Justice Holmes’s famous dissent in Abrams v. United States (1919) in which he criticized the majority’s affirmance of a criminal prosecution for the violation of an amendment to the Espionage Act of 1917. 

“The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

For a criticism of this concept, see, for example, Stanley Ingber,  “The Marketplace Of Ideas: A Legitimizing Myth,” Duke Law Journal, Vol. 1984, No. 1, accessed July 5, 2016, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2867&context=dlj.

6. California Code of Civil Procedure, Section 425.16.

7. Sarver v. Chartier (9th Cir. 2016) accessed July 5, 2016,
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/17/11-56986.pdf.

8. Fola Akinnibi, “9th Circ. Denies Rehearing In 'Hurt Locker' Ruling,” Law360, April 22, 2016, accessed July 5, 2016,
http://www.law360.com/articles/788135/9th-circ-denies
-rehearing-in-hurt-locker-ruling
.

11. See “NCAA reaches settlement in EA video game lawsuit,”
June 9, 2014,” accessed July 5, 2016,
http://www.ncaa.org/about/resources/media-center/press-releases/ncaa-reaches-settlement-ea-video-game-lawsuit.

12. See letter dated December 3, 2015, from Sarver’s attorney to the Ninth Circuit’s Clerk of the Court, accessed on July 5, 2016,
http://www.rightofpublicityroadmap.com/sites/rightofpublicityroadmap.com
/files/pdfs/voltage-sarver_-_sarver_status_letter_to_ninth_circuit.pdf
and Order dated December 24, 2015, July 5, 2016,
http://www.rightofpublicityroadmap.com/sites/
rightofpublicityroadmap.com/files/pdfs/sarver_resubmit.pdf
.

13. Makaeff v. Trump University, LLC (9th Cir. 2013), accessed July 5, 2016,
 http://cdn.ca9.uscourts.gov/datastore/opinions/2013/04/17/11-55016.pdf

14. Ibid., 21-22.

15. The U.S. Supreme Court had recognized decades ago that movies are entitled to protection under the First Amendment in Joseph Burstyn, Inc. v. Wilson (1952), accessed July 5, 2016, https://scholar.google.com/scholar_case?case=
5628256980652867975&hl=en&as_sdt=6&as_vis=1&oi=scholarr
.

16. Keller v. Electronic Arts (9th Cir. 2013), 6-7, accessed September 16, 2016, https://www.eff.org/files/keller_v._ea_-_ninth_circuit.pdf. Keller, in fact, involved nine student athletes, and the extent to which EA sought to duplicate these athletes’ characteristics (as well as others in this class action lawsuit) is evident in the Court’s description of EA’s football video game:

“Every real football player on each team included in the game has a corresponding avatar in the game with the player’s actual jersey number and virtually identical height, weight, build, skin tone, hair color, and home state. EA attempts to match any unique, highly identifiable playing behaviors by sending detailed questionnaires to team equipment managers. Additionally, EA creates realistic virtual versions of actual stadiums; populates them with the virtual athletes, coaches, cheerleaders, and fans realistically rendered by EA’s graphic artists; and incorporates realistic sounds such as the crunch of the players’ pads and the roar of the crowd.”

17. Ibid., 9.

18. Ibid.,10.

19. Comedy III Productions v. Gary Saderup (Ca. 2001), 141, accessed July 5, 2016, https://scholar.google.com/scholar_case?case=
6376074772628774470&hl=en&as_sdt=6&as_vis=1&oi=scholarr
.

20. Ibid., 6 and 18.

21. “The Third Circuit [applying the “transformative use” test developed by the California Supreme Court] came to the same conclusion in Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013). In Hart, EA faced a materially identical challenge under New Jersey right-of-publicity law, brought by former Rutgers quarterback Ryan Hart.”  Ibid., 19.

22. Ibid., 21.

23. Ibid., 30.

24. In distinguishing video games as mere entertainment and hence entitled to less protection, the Ninth Circuit echoes the U.S. Supreme Court’s refusal at the turn of the twentieth century to recognize that the First Amendment protects movies. In Mutual Film Corp. v. Industrial (1915), 242, 243 and 244, accessed July 5, 2016, https://scholar.google.com/scholar_case?case=
7270078849202844362&hl=en&as_sdt=6&as_vis=1&oi=scholarr
, when respectable society viewed movies as entertainment for the urban, often immigrant masses and a corrupting influence on the spiritual values of the dominant culture, the Court upheld local censorship of movies based on those dominant cultural values.

“[T]hey may be used for evil, and against that possibility the statute was enacted. Their power of amusement and, it may be, education, the audiences they assemble, not of women alone nor of men alone, but together, not of adults only, but of children, make them the more insidious in corruption by a pretense of worthy purpose or if they should degenerate from worthy purpose. Indeed, we may go beyond that possibility. They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. Besides, there are some things which should not have pictorial representation in public places and to all audiences." ...

"They, indeed, may be mediums of thought, but so are many things. So is the theatre, the circus, and all other shows and spectacles, and their performances may be thus brought by the like reasoning under the same immunity from repression or supervision as the public press, — made the same agencies of civil liberty." ...

"They are mere representations of events, of ideas and sentiments published and known, vivid, useful and entertaining no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition.”

25. Ibid., 43.

26. Davis v. Electronic Arts (9th Cir. 2015), 4, accessed July 5, 2016, http://cdn.ca9.uscourts.gov/datastore/opinions/2015/01/06/12-15737.pdf.

27. Ibid., 5. Like Keller, Davis included a class action with representative plaintiffs.

28. Keller involved student athletes whose teams were members of the National Collegiate Athletic Association (NCAA), a non-profit association which regulates such athletes at colleges and universities in the U.S. and Canada. Given the highly commercial nature of such “non-professional” athletics in the US, some have argued that student athletes should routinely be compensated. See, for example, Joe Nocera, “A Way to Start Paying College Athletes,” The New York Times, January 8, 2016, accessed July 5, 2016, http://www.nytimes.com/2016/
01/09/sports/a-way-to-start-paying-college-athletes.html
. In fact, the settlement in Keller resulted in compensation to these athletes from the NCAA’s licensing arm.  Tom Farrey, “Players, game makers settle for $40M,” ESPN, May 31, 2014, accessed July 5, 2016, http://espn.go.com/espn/otl/story/_/id/11010455/
college-athletes-reach-40-million-settlement-ea-sports-ncaa-licensing-arm
.

Moreover, in finding that the NCAA rules that bar compensation for the use of such student athletes’ name and likeness are subject to US anti-trust laws, the Ninth Circuit has specifically upheld, under a “rule of reason”, a trial court’s mandating as an alternative to the NCAA’s rule “allowing NCAA members to give scholarships up to the full cost of attendance.” O’Bannon v. NCAA (9th Cir. 2015), accessed July 16, 2016, http://www.scotusblog.com/wp-content/uploads/2016/04/ncaa-op-below.pdf .

In contrast, Davis involved professional athletes whose teams are members of the National Football League, a for-profit trade association that regulates American football for such athletes in the US.

29. Sarver v. Chartier (9th Cir. 2016), 16, July 5, 2016, https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/17/11-56986.pdf.

30. Ibid., 23.

31. Ibid., 25

32. Ibid., 25 and 26.

33. Ibid., 26.

34. Sarver at 26-27.

35. Cariou v. Prince (2nd Cir. 2013), 18, accessed July 5, 2016, https://www.law.berkeley.edu/files/Cariou_v_Prince_-_2d_Cir_2013.pdf

36. It is questionable whether the Court would have approved an unknown photographer’s use of images of Prince’s canvasses as “raw material,” considering the substantial market value of Prince’s canvasses. The Court was seemingly aware of that issue when it distinguished in Prince its line of cases in which the producers and copyright owners of celebrated television shows and movies had successfully prevented the publication of “complete guides”, quiz books and lexicons based on those shows and movies. See, for example, Castle Rock Entertainment v. Seinfeld Carol Publishing (2d Cir. 1998) (trivia quiz book based on Seinfeld TV show); Twin Peaks v. Publications International (2d Cir. 1993)(“complete guide” to Twin Peaks TV show); Warner Bros Entertainment v. RDR Books (SDNY 2008)(lexicon on the Harry Potter series). In these cases, the Court had held that such books affected the producers’ licensing market. Thus, in contrast to Prince’s “transformative” canvasses, these books, according to the Court in Prince, merely presented “the same material but in a new form,” and hence were “derivative” and infringed. Economic value frequently determines what’s fair and hence in the public interest.

37. For a thorough, legal analysis of how courts have increasingly adopted a “raw material” doctrine in areas of copyright and right of publicity and a critique of that adoption, see Andrew Gilden, “Raw Materials and the Creative Process,” 104 Geo. L. J. 355 (2015-2016). 

38. Sarver at 8.

39. Ibid., 9.

40. Ibid., 29.

41. Bleistein v. Donaldson Lithographing Company (1903), 251, accessed July 5, 2016, https://scholar.google.com/scholar_case?case=
3277054592305773876&hl=en&as_sdt=6&as_vis=1&oi=scholarr
. In that case Justice Holmes refused to deny the copyrightability of commercial posters for a circus.

42. Rosa and Raymond Parks Institute for Self Development v. Target (11th Cir. 2016), 14, accessed July 5, 2016, http://media.ca11.uscourts.gov/opinions/pub/files/201510880.pdf.

43. The differing standards in defamation cases as applied to public persons as opposed to private persons finds its origins in New York Times v. Sullivan (1964). The U.S. Supreme Court in Sullivan mandated under the First Amendment a higher standard of proof, namely a showing of “actual malice,” where a “public official” alleged a claim for libel against The New York Times.

44. Makaeff v. Trump University, Order Regarding Plaintiff Tarla Makaeff’s Motion To Withdraw, March 21, 2016, 8, accessed July 5, 2016, http://www.politico.com/f/?id=00000153-9f99-d022-ad57-ffddf4d80002.

45. Reid J. Epstein, “Trump Attacks Federal Judge in Trump U Case,” The Wall Street Journal, May 27, 2016, accessed on July 5, 2016, http://blogs.wsj.com/washwire/2016/05/27/trump-attacks-federal-judge-in-trump-u-case/. Thus, Trump told the crowd attending a rally for his presidential candidacy, “I have a judge who is a hater of Donald Trump, a hater. He’s a hater. His name is Gonzalo Curiel.” He also added, “What happens is the judge, who happens to be, we believe, Mexican, which is great. I think that’s fine.” Moreover, having advocated for the construction of a wall between the U.S. and Mexico in order prevent unlawful immigrants from entering the US, Trump later claimed that an “inherent conflict of interest” should bar Judge Curiel from hearing the case given that he was of “Mexican heritage”. Scot Bixby, “Donald Trump says judge in university court case biased by 'Mexican heritage,'” The Guardian, July 5, 20016, accessed June 3, 2016, http://www.theguardian.com/us-news/2016/jun/03/donald-trump-judge-curiel-university-case-biased-mexican?utm_source=esp&utm_medium=Email&utm_campaign=GU+Today
+USA++morning+briefing+2016&utm_term=175528&subid=7931573&CMP
=ema_a-morning-briefing_b-morning-briefing_c-US_d-1
.

There, of course, additional, recent and well-publicized instances where the application of the anti-SLAPP laws might also be appropriate. For example, a jury awarded Hulk Hogan a $140 million judgment against Gawker Media for publishing a video showing Hogan engaged in a sexual relationship with a friend’s wife. It was only revealed, however, post-trial that investor Peter Thiel had funded the lawsuit as a means of taking revenge on and putting out of business Gawker Media for its reporting several years ago that Thiel was gay. See Katie Rogers and Danielle Ivory, “Gawker, Legal Issues Beyond Hogan,” The New York Times, July 5, 2016, accessed May 31, 2016, http://www.nytimes.com/2016/05/31/business/media/gawker-lawsuits.html?ref=todayspaper. Thiel’s funding of that lawsuit had its intended impact upon Gawker Media. When the trial judge refused to stay execution of the $140 million judgment (which a circuit court judge later reversed, subject to the imposition of conditions upon Gawker Media), Gawker Media filed for bankruptcy in order to try to shield its assets even as it has also appealed the judgment. In the meantime it has put itself up for sale. Sydney Ember, “Gawker, Filing for Bankruptcy After Hulk Hogan Suit, Is for Sale,” The New York Times, July 5, 2016, accessed June 10, 2016, http://www.nytimes.com/2016/06/11/business/media/gawker-bankruptcy-sale.html?ref=todayspaper

46. “Matthew Perlman, “9th Circ. 'Hurt Locker' Ruling Could Harm Athletes: Unions,” Law 360, March 14, 2016, accessed July 5, 2016, https://www.law360.com/articles/770918.

47. Boal had, in particular, authored and then had published in Playboy in 2005 an article recounting his experience as an embedded journalist in Iraq and focusing on Sarver with whom Boal was embedded. Sarver claimed that he did not consent to the publication of the article.

48. The U.S. Supreme Court in the context of a libel claim has characterized the “involuntary public figure” as “exceedingly rare.” Gertz v. Robert Welch (1974), accessed July 5, 2016, https://supreme.justia.com/cases/federal/us/418/
323/case.html
.   An example of an “involuntary public figure” may, however, be found in Dameron v. Washington Magazine, Inc., (D.C. Cir. 1985), accessed July 5, 2016, https://law.resource.org
/pub/us/case/reporter/F2/779/779.F2d.736.84-5082.84-5056.html
, where an air traffic controller was on duty at the time of a fatal crash, a major public event. As such, he became an “involuntary public figure” for purposes of that crash and hence subject to a higher standard of proof in seeking compensation for his defamation claim.

49. Thus, for example, while identifying no right of privacy in the U.S. Constitution, the U.S. Supreme Court has upheld the rights of contraception and abortion, struck down sodomy laws and upheld a right to marriage by persons of the same sex by relying up an implied constitutional right of privacy or “liberty interest” under various constitutional guarantees, such as the right to due process. See Griswold v Connecticut (1965) (contraception), Roe v. Wade (1973) (abortion), Lawrence v. Texas (2003) (sodomy) and Obergefell v. Hodges (2015) (same sex marriage).

50. Other countries obviously differ in their values. The EU’s controversial decision on the “right to be forgotten” underscores the greater value that the EU places on individual privacy. Press Release No. 70/14, Court of Justice of the European Union, Luxembourg, May 13, 2014, accessed July 5, 2016, http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en.pdf.

51. William Prosser, “Privacy”, California Law Review (August 1960), Vol. 48, Issue 3, 389, accessed July 5, 2016, http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3157&context
=californialawreview
.

52. Samuel Warren and Louis Brandeis, “The Right to Privacy,” The Harvard Law Review, Vol. IV, No. (1890), 204 and 205, accessed July 5, 2016, http://faculty.uml.edu/sgallagher/Brandeisprivacy.htm.

54. Edward Snowden in 2013 revealed the most startling evidence of U.S. government surveillance. Laura Poitras’ movie CitizenFour (2014) and Glen Greenwald’s book No Place to Hide (2014) then documented those revelations. There is a veritable “cottage industry” documenting and discussing surveillance by private corporations. See, for example, Cullen Hoback’s movie Terms and Conditions May Apply (2013) and such books as Lawrence Lessing’s Code, Version 2.0 (2006) and Theresa Peyton/Theodore Claypoole’s Privacy in the Age of Big Data (2014)

55. Since the U.S. Copyright Act now enables copyright owners to secure exclusive rights to copyrighted material for the life of the author plus 70 years, 17 U.S. Code § 302, this means, for example, that The Jazz Singer (1927), the movie generally identified as the first “talkie,” theoretically remains under copyright protection and its current owner retains exclusive rights to this movie for several more years. The Act also bars access to material, regardless of its copyrightability or whether it remains under copyright, through the breaking of anti-circumvention technology or “locks” – even for purposes of fair use – unless the Librarian of Congress has expressly permitted by regulation such access. 17 U.S. Code § 1201; MDY Industries, LLC v. Blizzard Entertainment, Inc. (9th Cir. 2010), accessed July 5, 2016, http://cdn.ca9.uscourts.gov/datastore/opinions/2011/02/17/09-15932.pdf. Until recently, for example, teachers in the U.S. could not copy excerpts from Blue Ray discs (as opposed to DVDs) even for purposes of showing such movie excerpts in classes on the movies themselves.

56. Jack Valenti made that argument in testifying before a U.S. Congressional Hearing in 1982 following the Ninth Circuit’s decision in the “Betamax” case in which the Court had held that consumers through their use of Sony’s Betamax recorder infringed the copyrights of motion picture producers. See Hearings before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary House Of Representatives, Ninety-Seventh Congress Second Session, accessed July 5, 2016, http://cryptome.org/hrcw-hear.htm. The U.S. Supreme Court later reversed the Ninth Circuit’s decision. However, Valenti’s argument ultimately prevailed, resulting, for example, in the U.S. Digital Millennium Copyright Act (“DMCA”) that includes the prohibition on anti-circumvention technology, the Office of the U.S. Intellectual Property Coordinator that acts to protect against violations of the rights of IP owners, and the Trans-Pacific Partnership Agreement (“TPP”) whose copyright provisions largely track and in some instances expand upon the restrictions of the DMCA.