An Army Sergeant, who claimed the movie “Hurt Locker” was based on his experiences in Iraq without his consent, has lost his appeal Wednesday seeking to reinstate his defamation lawsuit.
The 9th U.S. Circuit Court of Appeals upheld dismissal of Sgt. Jeffrey Sarver’s lawsuit against the film company on free speech grounds.
The panel held that “The Hurt Locker,” about a bomb-disposal specialist in Baghdad, is speech that was fully protected by the First Amendment, which safeguards storytellers and artists who take the raw materials of life and transform them into art.
Sarver was an explosives disposal tech in Iraq in 2004-05, at a time when Mark Boal, a journalist working with Playboy magazine was embedded with Sarver’s unit in Baghdad and followed Sarver for a significant period both on and off duty.
Boal wrote an article focused on Sarver’s life and experiences in Iraq in 2005, but Sarver said he never consented to have his name or photos used in the Playboy article and tried to have it removed before publication.
Boal later wrote a screenplay for the film that became The Hurt Locker in 2009.
Sarver sued in 2010 claiming invasion of privacy, defamation, breach of contract, fraud, emotional distress and other allegations.
The film company and director Nicholas Chartier and others were named. They eventually responded filed a motion seeking early dismissal of the case based on a law that allows such action to protect meritless claims that are aimed at chilling expression. The law is California’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.
The trial judge determined that Chartier and the film company were engaged in the exercise of free speech in connection with a public issue and thus dismissed the lawsuit. Even assuming the movie’s lead character, Will James, and Sarver share similar physical characteristics and idiosyncracies, “a significant amount of original expressive content was inserted,” the court said.
The appeals court agree saying in this case the First Amendment concerns outstripped California’s right of publicity law, that imposes restrictions based on content.
The opinion was by Judge Diarmuid O’Scannlain and joined by Judges Richard Paez and Sandra Ikuta.
Case: Sarver v. Chartier, No11-56986