The Hurt Locker is speech that is fully protected by the First Amendment, which 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.
And the 9th Circuit distinguished earlier precedents that allowed right of publicity claims this way (paragraph break added):
[C]ritically, unlike the plaintiffs in Zacchini [a Supreme Court case involving the broadcast of a Human Cannonball act — EV], Hilton [a 9th Circuit case involved a greeting card that made a joke about Paris Hilton] and Keller [a 9th Circuit case involving a video game depicting college football players], Sarver did not “make the investment required to produce a performance of interest to the public,” or invest time and money to build up economic value in a marketable performance or identity.Rather, Sarver is a private person who lived his life and worked his job. Indeed, while Sarver’s life and story may have proven to be of public interest, Sarver has expressly disavowed the notion that he sought to attract public attention to himself. Neither the journalist who initially told Sarver’s story nor the movie that brought the story to life stole Sarver’s “entire act” or otherwise exploited the economic value of any performance or persona he had worked to develop. The state has no interest in giving Sarver an economic incentive to live his life as he otherwise would.
The court also rejected Sarver’s defamation, “false light,” and intentional infliction of emotional distress claims. Even to the extent the film was seen as being about Sarver, rather than as being fiction, and even to the extent that it may have falsely depicted some aspects of Sarver’s life, the depiction was neither defamatory nor offensive enough to be actionable.
1. The result is certainly right. The First Amendment should be read as protecting the right to publish unauthorized biographies chronicling a person’s life, as well as fiction works inspired by a person’s life, works that mention famous people and the like.
2. But the distinction that the court drew between Sarver and past cases seems odd. College football players invest time and effort (and physical risk) in becoming football players. Sarver invested time and effort (and even greater physical risk) in becoming a bomb disposal expert. Football players live their lives and work their jobs (the right of publicity rule is the same for salaried professional football players as it is for college players, who are paid in a different way), just as Sarver did. The movie “exploited the economic value” of what Sarver did for a living, just as the sports video games exploited the economic value of what the football players did for a living.
Now it’s true that Paris Hilton’s job and football players’ job involves a “performance,” in the sense of something that the public enjoys watching; Sarver’s job involves performance of tasks that the public wants to have done, but doesn’t directly watch. But why should that matter for First Amendment purposes? It can’t be because of incentives to do the job: Football players have plenty of incentives to become great football players, and reality stars have plenty of incentives to become reality stars; allowing people to depict them in video games or on greeting cards wouldn’t materially undermine that incentive.
3. Now one could argue that “The Hurt Locker” is an important story that tells us something about war, about soldiers, and the like, while the Paris Hilton card is merely a joke, and the football video game is merely a game. But that’s not consistent with the Supreme Court’s conclusion that video games are fully protected by the First Amendment (Brown v. Entertainment Merchants Ass’n (2011)), or the general view of courts that humor is fully protected by the First Amendment. And the Sarver court didn’t rely on any such distinction between more valuable movies and less valuable cards or video games. (As Prof. Jennifer Rothman points out, the court didn’t include video games in its list of valuable “art, be it articles, books, movies, or plays.” But I don’t think this was intended as an exhaustive list that would exclude, say, TV shows, songs, or video games, especially given that Keller, the 9th Circuit precedent allowing the football player video game lawsuit begins by acknowledging that video games are as protected as “books, plays, and movies.”)
For more on how messy the right of publicity law has become, and why the Supreme Court should step in and clarify matters, see this friend-of-the-court brief that Jennifer Rothman and I wrote; the brief supports petition asking the Supreme Court to review the 9th Circuit’s most recent football video game case.