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Iraq War Veteran Featured In "Hurt Locker" Appeals To Get Share Of Film's Success

Salomon Fuentes |
May 4, 2013 | 4:20 p.m. PDT

Executive Producer

Jeremy Renner stars as a bomb squad leader in the the 2008 film The Hurt Locker.
Jeremy Renner stars as a bomb squad leader in the the 2008 film The Hurt Locker.

U.S. Army Sgt. Jeffrey Sarver is a decorated Iraq War veteran from West Virginia who spent nearly 20 years in the armed forces. Jeremy Renner is a big Hollywood film star, best known for starring in the latest “Bourne” film.

These two men could not live more different lives, and yet, a lawsuit set to be heard in the California Ninth Circuit Court of Appeals in Pasadena on May 9 purports that during a two-hour film, that Renner was the very image of Sarver.

The 2009 film starred Renner as Staff Sergeant William James, the leader of a bomb squad in Iraq. “The Hurt Locker” would go onto become a huge critical success, winning Best Picture in the 2010 Oscars and Renner’s performance earned him a Best Actor nomination that same year.

Sarver filed a lawsuit—Sarver v. The Hurt Locker LLC et al.—in 2010, with Sarver claiming “misappropriation” of his name and likeness by director Kathryn Bigelow and writer/producer Mark Boal.

At the heart of this lawsuit is Sarver’s “right of publicity,” and whether or not the creators of “The Hurt Locker” violated it.

“A right of publicity claim, in essence, requires the commercial use of a name or likeness of a person, including that of a non-celebrity, without that person's consent,” said Robert Alpert, a partner and intellectual property lawyer with Bryan Cave LLP, who has both researched and written about the suit extensively.

Sarver and his lawyer, Todd Weglarz, argue that in using many of the same details from his life, that his right of publicity was violated in “The Hurt Locker,” and that he is therefore owed financial restitution.

“To the extent that the makers of the film have reproduced Sarver's ‘likeness,’ which Sarver alleges has been recognized by others, the makers of the film have seemingly violated his right of publicity,” Alpert said.

The lawyers for Bigelow and Boal have argued that the film is a “transformative” work of art, and therefore the creators’ First Amendment rights to free speech and free expression trumps Sarver’s right of publicity.

“What’s really going on is that we’ve had a lot of decisions over decades now,” said UCLA law professor Eugene Volokh.

While the courts have held that celebrities “might be able to stop people from selling t-shirts with their picture or possibly trading cards with their names, with their statistics, when it comes to books, when it comes to either fact or fiction, the First Amendment protects producers or that kind of speech from the right of publicity,” Volokh said.

In October of 2011, the U.S. District Judge Jacqueline Nguyen agreed with the defendants and threw out Sarver’s claim on the grounds that the film was a “transformative” work of art.

Jeremiah Reynolds, a lawyer for Boal and Bigelow, praised the decision, and added in a statement to the AP, "No artist should ever be forced to create entire fictional worlds that have no basis in reality simply because they fear the threat of meritless lawsuits."

Sarver is now appealing that decision in the California 9th circuit, but he faces a steep hill in winning this battle, because although the 9th circuit court may opt to ignore the transformative element, it is a fairly established as a rule in the State of California.

“If someone is creating a work of fiction—or a work of fact like a docudrama that is based on a person’s life, it could be a biography, could be a fictional work inspired by somebody—that’s constitutionally protected by the First Amendment,” said Volokh.

The courts believe that the First Amendment acts to preserve an uninhibited marketplace of ideas, as well as in order to furthering the individual right of self-expression. Anything short of that could be construed as censorship.

“It is not legally actionable under the right of publicity tort. So I don’t use how (Sarver) could win this,” said Volokh.

But Sarver and his legal team are staunch in their belief that the film exploited him. Just how did it get to this point?

Mark Boal also is the author behind "Zero Dark Thirty."
Mark Boal also is the author behind "Zero Dark Thirty."
In late 2004, then-Rolling Stone magazine writer Mark Boal would spend two weeks embedded in Iraq with the U.S. Army's 788th Ordnance Company, a specialized group that consisted of bomb-squad technicians, including Sarver.

At the time, the U.S. invasion into Iraq was 21 months old, and not even Baghdad, where Boal was reporting from, was safe from potential attacks.

Just the previous August, a massive truck bomb was detonated into the U.N. mission at the Canal Hotel in Baghdad, killing 22 and injuring 100 people. The need for bomb-squad technicians, like Sarver, became essential in the months following the attack.

The job was (and remains) an incredibly dangerous part of military operations. According to Boal’s own reporting, “This is a job so dangerous that bomb techs in Iraq are five times more likely to die than all other soldiers in the theater.”

But Sarver, 33 at the time, had already spent years in the military, and took a liking to the job.

According to a post on the New York State Bar Association’s blog on Sarver’s lawsuit, the following is a timeline of the events that occurred in 2004 and 2005:

“While serving in Iraq from July 2004-January 2005, he worked as an Explosives Ordinance Disposal (EOD) Technician. In December 2004, journalist Mark Boal was embedded with Sarver's unit. In addition to interviewing Sarver, Sarver's unit, and several other units, Boal photographed and videographed them. When Sarver returned to the U.S., Boal spoke with him again.”

Boal ended up turning his interviews and reporting into an article featured in the August/September 2005 issue Playboy Magazine that was entitled “The Man in the Bomb Suit.” That’s where things would begin to come into dispute.

The article extensively features Sarver (and his photograph) by name more than any other member of the 788th Ordnance Company, something Sarver would later say was because, “(Boal) didn't trust other bomb techs.”

The details from the article paint a portrait of Sarver as “a little guy, just five-foot-eight in combat boots,” but also as an individual who is a bold leader of his unit.

By 2005, Boal began working extensively with Bigelow on the script that would become “The Hurt Locker.” From Boal’s experience in Iraq, he created the fictional character William James. But how similar is James to Sarver?

Boal wrote in the article:

“Sarver's team kneels in the dirt, working on his armor like squires attending a knight. Soon he is strapped into an 80-pound bomb-protection envelope that will save his life if the blast is caused by five pounds or less of explosives…”

“…and Sarver is off, each step bringing him closer to a personal encounter with a lethal machine. His world changes as he gets closer to the bomb. At 10 feet out, the point of no return, he encounters what he calls the Morbid Thrill. He feels a meth-like surge of adrenaline. In the helmet's amplified speakers he hears his heart thump and his breath rasp, and then he sees it up close, the IED, an ancient artillery round wired to a blasting cap, half hidden in the white plastic bag.”

The article goes on to describe Sarver pulling apart and successfully defuse the bomb and, then, celebrating with his fellow bomb-squad technicians.

This particular moment is mirrored in “The Hurt Locker,” with crucial theme of the movie being that Renner’s William James is fearless and gets a rush from being in the presence of danger. The moment James returns home, he becomes bored by returning to civilian life and unsure of what to do or how to adjust.

Two similarities between Sarver and James—and Sarver claims there are many others. In 2009, Sarver saw the film and filed the suit.

In the joint answering brief filed in the Ninth Circuit, the filmmakers argue: “Although Appellant believes that a number of James’ traits and experiences depicted in the Film mirror his own, in fact, many are generic traits that describe numerous armed services personnel.”

Sarver’s team countered in his declaration, “Sarver details 29 examples of the movie’s theft of his likeness and personal information as documented in Boal’s Playboy article or observed heard or recorded by Boal during his embedment with Sarver’s EOD team.”

In addition, in Sarver’s summary of argument, his team argues that Judge Nguyen was mistaken in deciding “The Hurt Locker” was transformative, given all the similarities between Sarver and James.

Sarver’s team has argued: “The district court further erred by concluding that Defendants First Amendment affirmative defense barred Sarver’s claim as a matter of law. From the court’s opinion, it is absolutely clear that the judge invaded the province of the factfinder and inappropriately assessed credibility when she held that ‘no reasonable trier of fact could conclude that [The Hurt Locker’s portrayal of the will James character] was transformative.’”

His legal team would conclude: “The First Amendment concerns in this case are not well-taken and they must be balanced against Sarver’s misappropriation and right to privacy claims.”

“As I understand his argument, Sarver is arguing that the ‘transformative’ test does not permit the adoption in an expressive medium of an individual's likeness or persona, notwithstanding that fictitious events are added to the depiction of the individual's life,” Alpert said.

But a major issue for Sarver is the lack of precedent for what his legal team is arguing. His lawyers cite Kirby vs. Sega of America as one of the precedents in California for transformative works—arguing that it is very different case and that it does not apply to Sarver.

However, the Kirby case, in many ways, mirrors the Sarver case. Kierin Kirby was a singer in the pop band Deee-Lite. She felt that a character named Ulala in the video game “Space Channel 5,” took her image without permission and filed a misappropriation suit.

While the visual similarities between Ulala and Kirby were undeniable, the court found that the video game was transformative, and thus fully protected by the First Amendment on the following grounds:

“…We are similarly unable to conclude, as a matter of law, that Ulala is nothing other than an imitative character contrived of "minor digital enhancements and manipulations." Respondents have added new expression, and the differences are not trivial. Ulala is not a mere imitation of Kirby.”

Thus, in the eyes of the court, when it comes to right of publicity, the First Amendment’s guarantee of freedom of speech as it relates to works of art triumphs that right to privacy. That’s was the reasoning from Judge Nguyen rejecting Sarver’s suit in the original verdict.

But on appeal, the Ninth Circuit may not even look at that aspect. It is certainly not bound by the “transformative” test and instead may look at the commercial aspect.

“Federal courts are not bound by state court decisions interpreting the First Amendment. Thus, the (Motion Picture Association of America) is arguing, for example, that the ‘transformative’ test is too narrow and improperly limits the scope of the First Amendment,” said Alpert.

The courts have faced similar lawsuits, pitting individuals against the film industry, with the courts generally ruling in favor of filmmakers.

The most notable test case in recent years went before the Florida Supreme Court: Tyne vs. Time Warner, which pitted the survivors and family of an actual fishing boat crew lost at sea (and therefore, presumed dead) against the creators of the 2000 film “The Perfect Storm,” which was an adaptation of a book.

The suit was filed under the claim that the filmmakers violated Florida's commercial misappropriation law, and that restitution was owed to the family.

In this instance, the film begins by stating that, “THIS FILM IS BASED ON A TRUE STORY," and adding at the end: “This film is based on actual historical events contained in `The Perfect Storm' by Sebastian Junger. Dialogue and certain events and characters in the film were created for the purpose of fictionalization."

That distinguishes it to a degree from “The Hurt Locker,” which begins with a disclaimer that the film is a work of fiction.

But ultimately, the conclusion may very well be the same—the use of someone’s image is acceptable, so long as it is not being used for commercial purposes.

In the Tyne case, the Florida Supreme Court ruled:

“With respect to the appellants' claim of commercial misappropriation under section 540.08, Florida Statutes, the district court held that section 540.08 applies only to actions in which a person's name or likeness is used for commercial trade or advertising purposes. "[M]erely using an individual's name or likeness in a publication is not actionable under § 540.08. A motion picture is not, therefore, in and of itself, a `commercial purpose.'"

Since Sarver was not directly used to promote the film, the Ninth Circuit could very well decide to toss it out under that premise.

“When the commercial and expressive elements are ‘inextricably entwined,’ regardless of whether the individual is a celebrity or "private" person, the court may be inclined to balance the competing interests in favor of the First Amendment,” Alpert said.

“Of course, the court might balance the competing interests differently when the two interests are ‘inextricably entwined’ and the individual is not a celebrity. The court might tilt in favor of the non-celebrity in the same way that there is a lower standard of proof in libel cases involving individuals as opposed to public officials.”

It is because of this, that even if Sarver’s team could prove that the “The Hurt Locker” was somehow not transformative, he could still very much lose the case because his image was not used for commercial gain.

Yet, all of this brings up an interesting question: when does the industry have to pay people for the usage of their image? The answer is they don’t have to, but they might under some circumstances.

In a 2003 Slate article, professor Volokh explains why the studios might pay someone:

“Studios may therefore sometimes pay off the subject to prevent the risk of a lawsuit that—even if it ultimately loses—could possibly delay a multimillion dollar production.”

Under the First Amendment protection of information and news, non one “owns” the facts surrounding their lives—better known as “life rights.” That allows, for example, the media to freely report details of Sarver’s life without paying him.

There could be some serious implications if the courts were to give a dispositive victory to Sarver.

As is typically the case in matters involving films and the right to artistic expression, the MPAA (Motion Picture Association of America) has involved itself in the Sarver case by filing a joint amici curiae (“friends of the court”) brief.

According to Alpert, the MPAA and EMA (Entertainment Merchants Association), “argue that motion pictures, like books and other writings throughout history, draw upon ‘actual events and people.’” That has allowed such films as “Erin Brokovich” and “The Social Network” to be created.

“Thus,” Alpert adds, “they argue for a broad interpretation of the First Amendment when applied to right of publicity claims in the context of expressive media. Either such claims should be barred entirely or permitted only when the name or likeness is used to attract attention and is unrelated to the work.”

“If this court adopts Appellant Jeffrey Sarver's restrictive view of the First Amendment, however,” said Kelli Sager, a lawyer representing the MPAA in a statement, “the number of lawsuits brought against filmmakers would increase exponentially, since every person who is referenced in a film -- or who claims to have been the inspiration for a fictional character in it -- could use the threat of expensive litigation to demand payment."

The industry is already the target of numerous claims that, although they routinely win, can take years to settle and can be costly.

A ruling in favor of the “Hurt Locker” creators, could also have a significant effect:

“Admittedly, though, the facts in the present case, assuming the trial court's judgment in favor of the film makers is upheld,” said Alpert, “might enable those in the film industry to forego any payment unless they need a person's cooperation, such as, for example, obtaining information not otherwise available.”

Because a ruling that would fully define the terms of right of publicity and how the film industry work within those terms is unlikely, the most likely scenario is the one that has already been handed down

“It’s pretty likely the defendants will win, and that’s pretty much it for the case,” said Volokh. “Chances are the 9th circuit will side with the district court and say, ‘no liability, the defendants’ actions are protected by the First Amendment.’”

As such, Sarver is in a very difficult position because under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) Law, another rejected suit would mean he would have to pay attorney’s fees for the defendants. According to Deadline, Judge Nguyen ordered Sarver to pay $187,000 in attorney’s fees after throwing out the initial suit.

While on appeal, Sarver will not need to worry about paying. However, a loss at the Ninth Circuit would almost certainly mean paying even higher fees—unless he wins an appeal to the Supreme Court.

This brings things back to why Sarver is pursuing a case he will almost certainly lose. It’s possible he feels betrayed by Boal or that he wants to avoid having fellow veterans of the armed forces from being exploited, as he feels he has. There is little black or white in this case—it’s entirely grey, and Sarver is in the unfortunate crossfire.

It also brings us back to the First Amendment, which, for obvious reasons is of the most upmost importance for the courts to protect, even if it possibly means disrupting someone’s right of publicity.

“A robust First Amendment is extremely important,” Alpert said.

“Nevertheless, how do you balance that right against the ‘right of privacy,’ that is, a non-public figure's desire not to have his or her likeness portrayed in a theatrical release?,” Alpert said.

“Assuming Sarver's allegations are accurate - and, in fact, Mark Boal denies that he based the central character on Jeffrey Sarver - how would you react at seeing your likeness, which others recognized as such, as the central character on the big screen without your consent and particularly in a light which you allegedly viewed as false?”

“These are difficult issues.”

Reach Executive Producer Salomon Fuentes here; Follow him on Twitter here.



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