Ninth Circuit Rules on Life Story Rights for Private Individuals
Although most people are familiar with the critically acclaimed and award-winning film The Hurt Locker, the contentious law suit which plagued the underlying rights for the film and set forth a precedent for studios developing films based on life story rights is less familiar to the public.
The screenplay for The Hurt Locker is written by Mark Boal, a freelance journalist who was stationed with troops during the Iraq War in 2004. During his time abroad, Boal met Sergeant Jeffery S. Sarver, who was one of approximately 150 Explosive Ordnance Disposal technicians in Iraq. Boal was granted permission by Sgt. Sarver, to write an article about Sarver’s experiences on the bomb squad during the war, which was first published in an article called “The Man in the Bomb Suit” in September 2005 in Playboy magazine. Using the Playboy article, as well as other interviews, experiences, and observations acquired during Boal’s time in Iraq and afterwards, Boal wrote an original screenplay that was used as the basis for the film.
Shortly before the 2010 Oscars ceremony where The Hurt Locker won awards in six of nine categories for which it was nominated, including Best Picture, Sgt. Sarver announced his lawsuit against multiple parties involved in the making of the film, including Boal, the director Kathryn Bigelow, and the producer Nicholas Chartier. Sgt. Sarver’s lawsuit contended that the main character of the film was based on his life and experiences without his consent and that the film portrayed him in a defamatory way. The producers moved to strike the lawsuit, defending the film as speech that is constitutionally protected by the First Amendment. Ultimately, the district court ruled that “the use of Sarver’s identity was transformative and dismissed all of Sarver’s claims.”
On appeal this past February, the Ninth Circuit affirmed the district court’s verdict. Using California law, the court determined that (i) the content of the film is an issue of public concern and that both the war and the soldiers’ experience are subjects of longstanding public attention, (ii) the right of publicity is not applicable to Sgt. Sarver’s life story rights because although his “life and story may have proven to be of public interest . . . [t]he state has no interest in giving Sarver an economic incentive to live his life as he otherwise would,” and that to hold otherwise would violate the First Amendment, and (iii) the use of Sgt. Sarver’s identity and persona was not so “outrageous” to justify a claim for defamation, especially since Sgt. Sarver claims that Boal’s nonfiction account of him was substantially used in the making of the film.
What does this holding mean for artists in the film industry?
The Ninth Circuit’s narrow interpretation of the right of publicity should be noted by film studios and storytellers going forward. This ruling confirms that the right of publicity may successfully be invoked only in limited situations when there is a compelling personal interest that can overcome First Amendment protections. Because Sgt. Sarver did not develop a performance or identity of economic interest to the public, the state did not have an interest in recognizing his publicity rights over free speech protections – the average person does not have life story rights to sell. This important precedent allows film studios and storytellers to create broad artistic expressions of life stories, safeguarding them under the First Amendment from attack while limiting situations in which life story rights agreements are needed in film development.
 Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016).
 Id. at 896.
 Mark Boal, The Man in the Bomb Suit, Playboy, Sept. 2005, at 70.
 Sarver, 813 F.3d at 896.
 Id. at 896.
 Id. at 897.
 Id. at 906.
 Id. at 902 (noting that the film’s success at the Academy Awards constitutes evidence of this finding).
 Id. at 905.
 Id. at 906.