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Wednesday, July 17, 2024 | Back issues
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9th Circ. Ends ‘Hurt Locker’ Defamation Beef

PASADENA, Calif. (CN) - The team behind Oscar winner "The Hurt Locker" succeeded in persuading the Ninth Circuit Wednesday that free-speech rights defeat an Iraq war veteran's claims that the screenwriter used his life story without permission.

The ruling under California's anti-SLAPP is a significant victory for producer-screenwriter Mark Boal and director Kathryn Bigelow, after almost six years of litigation.

Sgt. Jeffrey Sarver's sued the writer and director back in 2010, claiming that their Oscar-winning movie was based on a nonfiction feature article that Boal, formerly a journalist, had written for Playboy magazine.

Boal observed Sarver while embedded with the U.S. Army's explosive ordinance unit in Iraq and conducted additional interviews with Sarver after he returned to Wisconsin in 2005, according to court records.

The writer's screenplay for "The Hurt Locker" is a fictionalized account of a bomb disposal team deployed in Iraq. Sarver claimed that Boal had him in mind when he created the film's protagonist Will James, played by actor Jeremy Renner.

In a March 2010 lawsuit for misappropriation of his likeness and right of publicity, false light invasion of privacy, defamation and other counts, Sarver said he never consented to the use of his name or life experiences in the Playboy article or movie.

The following year then-U.S. District Judge Jacqueline Nguyen ruled that "The Hurt Locker" filmmakers had a First Amendment right to tell the story.

Sarver appealed Nguyen's order, which granted filmmakers' motion to strike under California's anti-SLAPP (Strategic Lawsuit Against Public Participation) law.

In a Feb. 17 order, a three-judge panel of the Ninth Circuit affirmed Nguyen's order.

Circuit Judge Diarmuid O'Scannlain said that the filmmakers' anti-SLAPP motion succeeded in part because the Iraq War and Sarver's work was an "issue of public concern."

If Sarver's biographical details or characteristics had found their way into the film they were "displayed only in the context of the character's experiences fighting in Iraq" and are "inherently entwined with the film's alleged portrayal of his participation in the Iraq War," O'Scannlain wrote for the panel.

"We conclude that this focus on the conduct of the Iraq War satisfies California's standards for determining whether an issue is one of public concern. That war, its dangers, and soldiers' experiences were subjects of longstanding public attention," O'Scannlain wrote in the 30-page opinion.

Sarver had not created the "economic value in a marketable performance or identity" that could have led to a loss for the filmmakers under California's right-of-publicity laws, O'Scannlain continued.

If Sarver made clear that the filmmakers had capitalized on his image that would have undermined their protections under the First Amendment, the judge said.

As it stood, Sarver did not "invest time and money to build up economic value in a marketable performance or identity," he added.

"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," O'Scannlain continued, noting that applying Sarver's California's right of publicity claim to the case would violate the First Amendment.

"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," O'Scannlain wrote.

O'Scannlain affirmed the dismissal of Sarver's defamation claim. The judge said he agreed with Nguyen's finding that the protagonist Will James was a "heroic figure, albeit one struggling with certain internal conflicts."

Sarver's claims of false light and intentional emotional distress were also rejected by the court.

On the latter claim, O'Scannlain said that the "The Hurt Locker" did not give rise to the kind of "extreme" or "outrageous" conduct that would support an emotional distress claim.

"Boal was embedded with Sarver's unit, interviewed Sarver, and ultimately published a factual account of those experiences. It is not outrageous that Boal's factual account then led to a fictionalized screenplay and film," O'Scannlain wrote.

Circuit Judges Richard Paez and Sandra Segal Ikuta joined the court's opinion.

Boal won an Academy Award in 2010 for best original screenplay for "The Hurt Locker" while Bigelow won best director. She is the only woman to have won the award, and her film is the lowest-grossing best picture winner to date.

More recently, Boal has teamed up with popular Serial podcast for its second season about the U.S. soldier Bowe Bergdahl, who was captured by the Taliban after leaving his post in Afghanistan.

"The Hurt Locker" producer Nicolas Chartier, Summit Entertainment and Playboy Enterprises were among the other named defendants in Sarver's lawsuit.

Nguyen joined the Ninth Circuit in 2012.

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