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'The Hurt Locker' Is Protected Speech, 9th Circuit Rules

By Jonathan R. Tung, Esq. on February 24, 2016 | Last updated on March 21, 2019

The Ninth Circuit's recent decision concerning "The Hurt Locker" film is important for those defendants who author screenplays or make film's based on real people and real events. Such stories, the Ninth Circuit concluded, are "fully protected speech."

It's been several years since Mstr. Sgt. Jeffrey S. Sarver brought his suit. Who knew that what once started as a Playboy article would one day eventually turn into a civil rights debate?

The Main Character

As many people know, "The Hurt Locker" started its life out as an article journalist Mark Boal wrote for Playboy that chronicled the goings-on of army bomb squads during the Iraq War.

The plaintiff in this case, Sgt. Jeffrey Sarver, saw himself in the main character of Will James and complained of defamation and an infringement of his publicity rights. His suit was dismissed in 2011, and was shelved in anticipation that SCOTUS would review the issue of publicity rights in a case involving college athletes and video games. When that never happened, the Ninth Circuit moved forward instead.

A Matter of Public Concern

The Ninth Circuit balked at the protection of publicity rights and ruled that the First Amendment trumped California's laws in favor of promoting open speech regarding those issues of "public interest." "The Hurt Locker," the circuit court argued was actually instrumental in bringing about public awareness of the lives of soldiers, war, fear and the toll of battle.

Differences, Differences

This is somewhat in contrast to the case in which Paris Hilton brought misappropriation complaints Troy Dyer who'd unfortunately opted to use Ms. Hilton's image on greeting cards in his Reality Bites film. And there was also this Hallmark incident, too. This point was in fact mentioned in the Ninth Circuit's opinion. Apparently, the court had a somewhat elevated opinion of Mr. Sarver's occupation than of Ms. Hilton's. We wonder why?


At first glance, the decision strikes many as pretty much obvious. After all, many stories or films have been made based on real people or places and made fictional later -- none of them requiring the subject's permission.

But in this particular case, the legal issues are just a tad more nuanced. In these facts, the applicable law was California law, meaning that California's publicity rights laws should also be applied where appropriate. With regards to Free Speech -- well, California's SLAPP laws are what are most implicated, here.

Apparently, "where appropriate" is debatable. The Ninth Circuit's decision makes it rather plainly clear that artists, directors or other movie makers need only include just enough material within their works that are of a "public concern" to get greenlit in bypassing California's (or other states') publicity protection laws. If a director or movie maker wants, sees or hears about a story he likes, he no longer has to purchase or secure permission to make the movie about a person so long as there is enough "public interest" elements within the story to defeat local laws.

The Ninth's decision, which first appears to protect the individual's right to free speech, has also inadvertently provided means for individuals to also abuse speech under the guise of informing the public of something that ought to interest them -- in both senses of the word. We just know this is not the last time this issue will see court time.

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