No compelling interest in right of publicity for private figure, 9th Circuit rules

Sarver v. Chartier, No. 11-56986 (9th Cir. Feb. 17, 2016)
Shorter opinion about why the film The Hurt Locker didn’t violate Army Sergeant Jeffrey Sarver’s right
of publicity: “video games are different.” 
Sarver led a team in Iraq to dispose of IEDs. A journalist embedded with
his division followed him “for a significant amount of time and took
photographs and video of him while he was on and off duty,” and conducted
additional interviews with him back in the US. 
The Playboy article he wrote
was later condensed in Reader’s Digest;
it used two photos of Sarver and other personal information, allegedly without
his consent, and he objected to the article. 
The journalist later wrote the screenplay for The Hurt Locker, and Sarver argued that Will James, the movie’s
main character, was based on his life and experiences.
Sarver sued in New Jersey for misappropriation of his
likeness and right of publicity, false light invasion of privacy, defamation,
breach of contract, intentional infliction of emotional distress, fraud, and
negligent misrepresentation. The case was transferred to California, where the
defendants filed a motion to strike under California’s anti-SLAPP statute.  The court of appeals first went through a
choice of law analysis and applied California law, given the predominance of
California contacts, the difficulty of determining Sarver’s domicile, and California’s
strong interest in enforcing its anti-SLAPP law to “encourage continued
participation in matters of public significance” and to protect against “a
disturbing increase in lawsuits brought primarily to chill the valid exercise”
of constitutionally protected speech.  While New Jersey has no similar law, “its
courts have allowed defendants to bring a claim for malicious use of process to
protect against suspected SLAPP actions.” Thus, the balance of interests tilted
towards California: “Whereas California would appear to object strongly to the
absence of a robust anti-SLAPP regime, New Jersey’s interests would be less
harmed by the use of California law.”
It wasn’t hard to show that defendants’ acts were an exercise
of their free speech rights on a matter of public interest, something which is
to be broadly construed.  One California
court said:
“a matter of public interest should be something of concern
to a substantial number of people.” Further, “there should be some degree of
closeness between the challenged statements and the asserted public interest,”
and the “focus of the speaker’s conduct should be the public interest.” The
Iraq war, and the use of IEDs by insurgents during the war, was “a matter of
significant and sustained public attention.” 
Sarver argued that the true issue was “whether the defendants’ alleged
misappropriation of his private persona is of public interest.”  However, unlike the situation of a random
callow youth, “Sarver’s work while deployed in Iraq was an issue of public
concern significant attention devoted to the war and to the role of IEDs in it.”  Significantly, while the film allegedly
incorporated his personal characteristics, the portrayal specifically centered
around his work, and his characteristics were displayed only in the context of
his job in Iraq. Thus, “the private aspects that Sarver alleges the film
misappropriated are inherently entwined with the film’s alleged portrayal of
his participation in the Iraq War.”  This
was sufficient to show that the narrative focused on an issue of public
At that point, the burden shifted to Sarver to “state and
substantiate a legally sufficient claim.” 
Under last Term’s Reed
decision, content-based restrictions on speech, such as the right of publicity,
are presumptively unconstitutional and must be shown to be narrowly tailored to
serve compelling state interests. 
[Query, in the case of a common-law right, who is to make this showing
and on what record.]  Zacchini said the right of publicity was
constitutional as applied to the appropriation of a performer’s entire
performance.  [Zacchini, of course, did not apply strict scrutiny; rather, it
applied an analogy to a form of speech restriction that the Court has said
ordinary First Amendment principles don’t apply to, see Eldred/Golan, a logic
that looks even worse after Reed.] 
Zacchini reasoned
the state’s right of publicity law was aimed at protecting “the proprietary
interest of the individual in his act” and “prevent[ing] unjust enrichment by
the theft of good will,” in order to provide “an economic incentive for [the
individual] to make the investment required to produce a performance of
interest to the public.” This was similar to the interests which “underlie[]
the patent and copyright laws long enforced by this Court,” as opposed to
reputational and privacy-based interests which underlie torts like defamation. The
Court balanced this interest against the TV station’s First Amendment interests
in broadcasting the performance and found the station’s interest less weighty
because “[n]o social purpose [was] served by having the defendant get free some
aspect of the plaintiff that would have market value and for which he would
normally pay.” [Note how the “balancing” has nothing to do with Reed strict scrutiny.  Just sayin’.] 
The Ninth Circuit has extended Zacchini to lots of things, from greeting cards to video games,
even outside of advertising.  “[O]ur
precedents have held that speech which either appropriates the economic value
of a performance or persona or seeks to capitalize off a celebrity’s image in
commercial advertisements is unprotected by the First Amendment against a
California right-of-publicity claim.” 
But those cases don’t apply here, because Sarver isn’t a
celebrity: he didn’t “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.  He’s
a private person, even though his story is of public interest.  “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.”
Comment: so, the state has no interest in giving incentives
for things that would be produced anyway, where the incentive is given by way
of restrictions on speech?  Good to know.
Continuing: “The Hurt
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.”  Um, aren’t celebrities part of the raw
materials of life?  (Calling Andrew Gilden:
perhaps celebrities are already cooked, but they can still be chocolate chips
in my expressive cookies, no?)
Anyway, it’s not even clear that California’s right of
publicity would extend this far, given that the California Supreme Court barred
a right of publicity action based upon the unauthorized exhibition of a
“fictionalized version” of Rudolf Valentino’s life on television, because there
was no postmortem right.  Guglielmi v.
Spelling-Goldberg Prods., 603 P.2d 454, 455 (Cal. 1979). But a broader
concurring opinion explained that, unlike in Zacchini, there was no claim that the defendants secretly filmed
Valentino’s “performance” or otherwise stole his “entire act,” so as to
“undercut[] his ability to earn a living,” thus meaning that the fictionalized
portrayal of Valentino’s life was entitled to greater First Amendment
protection than the conduct in Zacchini.  Gee, I wonder what implications that logic would
have had for Keller v. EA?
After the right of publicity claims were kicked out, the
remaining defamation, false light, and intentional infliction of emotional
distress claims promptly followed. “[A] reasonable viewer of the film would be
left with the conclusion that the character Will James was a heroic figure,
albeit one struggling with certain internal conflicts.”  Even unflattering aspects wouldn’t be enough
to make this defamatory or highly offensive to a reasonable person, even if
they were provably false (such as the character’s alleged fascination with war
and death).

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