PASADENA, Calif. (CN) - A federal judge should not have struck misappropriation-of-likeness claims from a veteran suing the filmmakers of "The Hurt Locker," his lawyers told the 9th Circuit Thursday.
Sgt. Jeffrey Sarver's claims that "The Hurt Locker" was based on his life, drawn from interviews he gave to journalist Mark Boal for a feature in Playboy magazine.
Boal allegedly observed Sarver while embedded with the Army's explosive ordinance unit in Iraq, and he conducted additional interviews when Sarver returned to Wisconsin in 2005.
The published piece focused exclusively on Sarver's life. Boal later penned the screenplay for Kathryn Bigelow's acclaimed "The Hurt Locker" about a bomb disposal team deployed in Iraq.
Its reckless antihero, Will James, played by actor Jeremy Renner, is allegedly a dead ringer for Sarver, who said he never consented to the use of his name or life experiences in either the Playboy article or the movie.
Sarver also claimed that the tremendous publicity attached to the movie endangered him during military operations, and made military personnel see him as a counterintelligence risk for "selling" movie rights to his life story.
In October 2011, U.S. District Judge Jacqueline Nguyen ruled that the "The Hurt Locker" filmmakers had a First Amendment right to free expression, and had transformed the movie as a work of art.
"Defendants unquestionably contributed significant distinctive and expressive content to the character of Will James," Nguyen wrote. "Even assuming that plaintiff and Will James share similar physical characteristics and idiosyncrasies, a significant amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie."
Sarver appealed after Nguyen granted the filmmakers' motion to strike under California's Anti-SLAPP (Strategic Lawsuit Against Public Participation) law.
On Thursday morning, attorney Michael Dezsi of Detroit told a three-judge panel of the 9th Circuit that the case should never have been transferred from New Jersey to Los Angeles.
The filmmakers had dragged their feet for one year before filing a California anti-SLAPP motion, Dezsi said.
"I believe that the case was properly filed in New Jersey, that New Jersey law should have applied, and the motion was untimely," the lawyer added, noting that Sarver was stationed in the state when he made his claims.
Dezsi also said that the appeals court need not get into "a First Amendment battle at this stage" because Sarver had met the minimal standard under California's anti-SLAPP law to survive the filmmakers' motion to strike.
Judge Sandra Segal Ikuta wanted Dezsi to concede that the movie is of sufficient public interest, pointing out that "The Hurt Locker" was inspired by what Boal saw during the 30 days he spent with the bomb-disposal unit.
Dezsi countered, however, that "the movie was used as a vehicle to portray my client's life story.
"Mr. Boal was looking for a story and he found one in my client's life," Dezsi added.
"Why does anyone in this room have to know how my client showers, or how he communicates with his family, or what he says to his son," he continued. "That, respectfully, is not a public interest."
Ikuta retorted: "People are interested in seeing a story about a person, not a history lesson."
David Halberstadter with Los Angeles law firm Katten Muchin Rosenman did not shy away from defending the film under the First Amendment.
Referring to Sarver, the lawyer noted that Bigelow's film "didn't use his name, didn't use his voice, didn't use his photograph, didn't use his likeness, and really didn't use anything particularly unique or identifiable."
Judge Richard Paez shot back: "You used his story."
But Halberstadter said that, even if the movie had "portrayed Sgt. Sarver identically," it would have made no difference under the transformative-use analysis of the film.
"If it were not the case, then stories that we see everyday in 'Law & Order,' which are ripped from today's headlines involving private individuals, could not be made," Halberstadter said.
Judge Ikuta noted that "even noncelebrities have a right to publicity."
Halberstadter countered that publicity rights protect commercial use of a person's image, "not the incorporation of those attributes in an expressive work that is protected by the First Amendment."
There would be a "big problem" if Sarver's face was put on a cereal box, he said.
But "when you talk about telling Sgt. Sarver's story in a First Amendment protected work," that is a different story, Halberstadter added.
Dezsi urged the court during rebuttal to look at the case through the lens of whether the lower court imposed too high a standard on Sarver under anti-SLAPP law. Sarver was not asking the court to "create a new law" or an exception, Dezsi said.
"The defendants are making much ado about a First Amendment argument," Dezsi said. "Well perhaps that might be appropriate on another day. But that's not what we have to satisfy at this point in the lawsuit. It's simply the anti-SLAPP."
Halberstadter represents film distributor Summit Entertainment. Jeremiah Reynolds with Santa Monica firm Kinsella Weitzman & Aldisert argued briefly for Boal and Bigelow. Jon-Jamison Hill with Beverly Hills-based firm Eisner, Kahan & Gorry made the case for producer Nicolas Chartier.
Judge Diarmuid O'Scannlain sat on the panel with Judge Paez and Judge Ikuta.
Boal won an Academy Award in 2010 for best original screenplay for "The Hurt Locker." That completed a haul of six Oscars, including best picture and best director for Kathryn Bigelow, who was the first woman to win the award.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.