Dean Rodney A. Smolla, Delaware Law School, Widener University
February 29, 2016

The U.S. Court of Appeals for the Ninth Circuit recently decided a major right-of-publicity case with important implications for creative works based on real events.  The case, arising from the film “The Hurt Locker,” was Sarver v. Chartier.1  Mark Boal, a journalist working for Playboy magazine, took an assignment as an embedded journalist with an Army unit in Camp Victory in Baghdad, Iraq.  His article for Playboy, which also appeared in a condensed version in Reader’s Digest, ultimately became the screenplay and film “The Hurt Locker,” also written by Boal.  Sergeant Jeffrey Sarver was in the Army unit upon which Boal based his work.  Boal used Sarver’s photographs in the Playboy article, but Sarver consented neither to the depiction of his life in the articles nor to the appropriation of his life story for the movie.

The Ninth Circuit held that the First Amendment protected Boal’s actions in depicting the real life and experiences of Sarver, and that the First Amendment precluded Boal from bringing any right-of-publicity claim.  The ruling has important implications for when it is necessary to obtain “life story rights” from a real person before telling that person’s story in creative works.  The U.S. Supreme Court, in the “human cannonball” case, Zacchini v. Scripps-Howard Broadcasting Co,2 held that the First Amendment did not protect a television broadcast of the entire 15-second human cannonball act of Hugo Zacchini, and that Zacchini could maintain a right-of-publicity claim for the unauthorized broadcast of his performance.  The Supreme Court in Zacchini analogized Zacchini’s claim to other forms of protection of intellectual property, such as patent and copyright laws.  Zacchini charged admission for his act, and could rightly prevent a television station from filming it and letting others see it for free.

The Ninth Circuit distinguished Zacchini in the Sarver case, however, by drawing a distinction between the unauthorized exploitation of the economic value that has been built around a person’s identity or performance, and merely taking real historic events, including real people, and telling their stories.  Boal, in effect, wrote an unauthorized biography of a private soldier.  That was different in kind from merchandising a celebrity’s image or appropriating another’s creative work or performance.  The court thus held that the First Amendment does not protect speech that “either appropriates the economic value of a performance or persona or seeks to capitalize off a celebrity’s image in commercial advertisements.”3  Sarver, however, had not invested any time or money to “build up economic value in a marketable performance or identity.”4  Instead, the court held, “Sarver is a private person who lived his life and worked his job.”5

A large part of the telling of history, the work of journalists, and the work of novelists, non-fiction writers, or screenwriters involves the telling of the stories of real people.  The First Amendment protects that.  If Sarver had written his own story about his own life in Iraq, and a moviemaker read his story and appropriated it by turning it into a movie, that presumably would have violated Sarver’s intellectual property rights.  Sarver’s story would then be protected by copyright, and a movie would be deemed a derivative work, part of the bundle of rights owned by Sarver incident to his copyright.  But all Sarver did was live his life, and that alone did not vest in him an intellectual property right impervious to the First Amendment.  As the court summarized its reasoning: “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.”