I found the movie "The Hurt Locker" so evocative of Iraq that I saw it six times. Apparently the verisimilitude wasn't an accident. According to a lawsuit brought by U.S. Army Sergeant Jeffrey Sarver, the film's bomb- defusing lead character was based on him. The film's screenwriter, Mark Boal, was embedded with Sarver's company in Iraq and published an article on Sarver's life and experiences in Playboy magazine in 2005.
Sarver sued Boal and the film's producers under a California rule that prohibits appropriating a public figure's likeness for commercial purposes without consent. On Wednesday, the U.S. Court of Appeals for the 9th Circuit upheld the dismissal of the bomb-disposal technician's case on the grounds that the film's First Amendment protections trumped any claim Sarver might have to ownership of his likeness.
The holding is dubious under controlling U.S. Supreme Court precedent. But it reflects a trend in appeals courts in which the freedom of speech is being used to defeat a person's claims to their image or story. The law here is changing in favor of Hollywood and against individuals.
Sarver and the defendants disagreed about whether the film had actually appropriated his name or likeness. The lead character in the movie is named Will James, not Jeffrey Sarver, and Boal insists he didn't base the story on Sarver in particular.
But the 9th Circuit didn't have to address whether Sarver could prove his case, because it decided that the First Amendment blocked him from prevailing no matter what.
The Supreme Court precedent that's most on point here is a little-known 1977 decision called Zacchini v. Scripps-Howard Broadcasting Co. It involved one Hugo Zacchini, a human cannonball whose act was to be shot some 200 feet into a net. A freelance journalist at a county fair filmed the act, which was then broadcast in its 15-second entirety on a local news channel.
Zacchini didn't think all publicity was good publicity, and he sued under Ohio's right of publicity, a principle not very different from California's. In an opinion written by Justice Byron White -- who as a former All-American and National Football League player knew something about celebrity -- the Supreme Court held for the human cannonball.
White started by comparing an individual's right of publicity to authors' rights under copyright law, which exist under the First Amendment even though copyright limits the flow of information. He noted that had the television station "merely reported that petitioner was performing at the fair and described or commented on his act ... we would have a very different case." But the court emphasized that Zacchini's entire act was shown on television, which posed "a substantial threat to the economic value of that performance."
White's opinion approvingly quoted a law review article by the great First Amendment scholar Harry Kalven. The rationale for protecting an individual's right of publicity, Kalven wrote, "is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay."
On its face, this rationale would seem to apply to Sarver's story. He lived his life, not to mention risking it repeatedly, for his country. For a film to have profited from the publicity associated with that life would seem to be an instance of unjust enrichment, assuming his allegations are correct. Sarver's story almost certainly would've had "market value" had he chosen to sell the rights to his life to a Hollywood producer.
Yet the 9th Circuit held that the Zacchini precedent did not apply. It reasoned that, unlike the human cannonball or the author of a copyrighted book, Sarver didn't make an investment in a performance of interest to the public. Instead, wrote Judge Diarmuid O'Scannlain, "Sarver is a private person who lived his life and worked his job."
I like and respect O'Scannlain. But if I may say so: Huh? Modest veterans are free to play down their contributions to the nation -- that's their business. But for a federal judge to call a bomb-disposal technician in Iraq a private person working his job is fairly outrageous.
Sarver was a soldier in the service of his country, not a private person. And through no choice of Sarver's, his bosses -- the American people -- saw fit to embed a journalist to follow him around while he "worked his job" of defusing IEDs.
O'Scannlain went on to argue that the film didn't "exploit the economic value of any performance or persona he had worked to develop." That's true as far as it goes -- no doubt Sarver didn't go around risking his life to end up in a movie. But the Supreme Court, quoting Kalven, said the purpose of the right of publicity was also "preventing unjust enrichment by the theft of good will." The fact that Sarver didn't invest money in creating a for-profit act doesn't prove that he lacks a right to his likeness or story. A public figure has a right to his or her likeness under California law, regardless of whether they've invested money to develop that persona.
The core of the 9th Circuit's holding was that the First Amendment "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." Applying California's law to "The Hurt Locker," said the court, would be a content-based limitation on speech that would be unconstitutional unless justified by a compelling state interest --- known as strict scrutiny, the highest legal standard.
Notably, the Zacchini case didn't apply strict scrutiny --- because it compared the right of publicity to copyright. It said, rather, that no one would be deprived of Zacchini's entertaining act if he had to get paid -- just like in copyright. Sarver's story wouldn't have been suppressed, just sold to the screenwriter and producers for a modest fee.
In the more innocent days of the 1970s, free-speech absolutism wasn't yet the norm.
Today, free speech is being used to let Hollywood profit from people's lives without paying them for the rights. Perhaps that's the right distribution of wealth --- but not until the Supreme Court says so. And it hasn't.