Ninth Circuit Finds First Amendment Bars Right of Publicity Claim re Hurt Locker
An Iraq war veteran’s right of publicity claim against the director and producers of the Academy Award-winning film, “The Hurt Locker,” asserting that the depiction in the movie was based on his experiences in Iraq and thereby violated his right of publicity (among other torts), was found to be barred by the First Amendment by the 9th Circuit Court of Appeals.
The Court was reviewing an anti-SLAPP motion to strike the claims, which requires a determination that the suit arises from the Defendants’ exercise of their First Amendment rights. The Court easily found that a film about the Iraq War was a public concern.
In sum, 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,” writes 9th Circuit judge Diarmuid O’Scannlain. “If California’s right of publicity law applies in this case, it is simply a content-based speech restriction. As such, it is presumptively unconstitutional, and cannot stand unless Sarver can show a compelling state interest in preventing the defendants’ speech. Because Sarver cannot do so, applying California’s right of publicity in this case would violate the First Amendment.
The court also affirmed the dismissal of false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and constructive fraud/negligent misrepresentation claims .
The opinion is below.