Iraq War Veteran Appeals Dismissal of 'Hurt Locker' Lawsuit (Exclusive)
Master Sgt. Jeffrey S. Sarver joins Gilbert Arenas and the estate of Jimi Hendrix in pressing publicity rights claims.
Next year figures to be a big one in the realm of publicity rights, the canon of law that protects individuals from exploitation of their names and likenesses. The 9th Circuit Court of Appeals is set to hear several high-profile disputes involving celebrities like NBA superstar Gilbert Arenas and the late rock legend Jimi Hendrix. Also on the docket now is a challenge by Jeffrey S. Sarver, the Iraq war veteran who claims that the Oscar-winning film, The Hurt Locker, misappropriated his likeness in telling the story of an Army bomb squad.
Sarver filed his appeal to the 9th Circuit on Friday. The veteran made his move after a judge rejected his lawsuit in October against producers of The Hurt Locker.
In that decision, federal Judge Jacqueline Nguyen ruled that the First Amendment allowed the makers of the movie to tell a story of public interest, and that even if the main character of Will James was based on the the plaintiff, "no reasonable trier of fact could conclude that the work was not transformative."
The balancing of free speech vs. exploitation of someone's identity is also on display in a 9th Circuit appeal made by Arenas, who failed in his attempt to get a federal judge to issue an injunction preventing his former fiancé from appearing on VH1's Basketball Wives.
Unlike the Sarver case, where the plaintiff alleged that the fiction was thinly-veiled reality, Arenas claimed the VH1 reality show gave the fictional suggestion of an affiliation with basketball players such as himself. Alas, Judge Dolly Gee found it, too, was "transformative," and even a matter of public interest as supported by evidence that tens of thousands of Twitter users follow Arenas' mundane activities.
On Tuesday, Shed Media, producer of Basketball Wives, asked the 9th Circuit to affirm the decision, citing Arenas' ex-fiancé's First Amendment right to tell her story and no evidence that Arenas would suffer irreparable reputational harm in the broadcast of the series.
Finally, there's a dispute brought by Experience Hendrix, the estate of the famed rock star, against HendrixLicensing.com, partially owned by Jimi's blood brother Leon who was cut out of the will. The defendant allegedly sold t-shirts, posters, lights, dartbords, key chains and other items designed to capitalize on the fame of the rock legend, kicking off litigation over possible trademark and publicity rights violations.
Last February, federal judge Thomas S. Zilly declared the state's publicity rights law to be unconstitutional as a violation of the due process and full faith credit clauses of the U.S. Constitution. He reasoned that it allowed non-domiciled celebrities to essentially forum-shop.
Since publicity rights claims are a nascent field, only around for about 50 years with most of the important decisions coming in the past 20, various judicial circuits around the nation have interpreted the standards for bringing a claim differently. Some states are more lax in allowing publicity rights claims to be tried than others. Interestingly, Sarver first brought his lawsuit in New Jersey before a judge there ruled it should be moved to California. And in the Basketball Wives case, another NBA superstar, Chris Bosh, had his similar claims rejected because he couldn't show enough contact in California.
The Hendrix estate appealed Zilly's judgement in late October. Briefs are scheduled to be submitted by the parties early next year.