Sgt. Jeffrey Sarver v. Nicolas Chartier
813 F.3d 891
| 9th Cir. | 2016Background
- Sgt. Jeffrey Sarver, an Army EOD technician, was interviewed and photographed by journalist Mark Boal while deployed; Boal published a Playboy article about Sarver and later wrote the screenplay for the film The Hurt Locker.
- Sarver sued in New Jersey alleging right of publicity/misappropriation, false light, defamation, breach of contract, IIED, fraud and negligent misrepresentation, asserting Will James (the film’s protagonist) was based on him without consent and harmed his reputation.
- Defendants moved to transfer; the case was transferred to the Central District of California, where defendants filed anti‑SLAPP motions under Cal. Civ. Proc. Code § 425.16; district court granted the motions and dismissed the complaint in full.
- On appeal the Ninth Circuit applied New Jersey choice‑of‑law rules (transferor forum), concluded California law governed under Restatement (Second) §§ 145 and 6, and held the federal court could apply California’s anti‑SLAPP doctrine (but not its 60‑day timing restriction).
- The court applied California’s two‑step anti‑SLAPP test: (1) the challenged speech concerned a public issue (the Iraq War/IEDs and soldiers’ experiences); (2) Sarver failed to show a probability of prevailing because application of the right of publicity would be a content‑based restriction barred by the First Amendment in this context.
- The Ninth Circuit affirmed dismissal of the right of publicity claim and other tort claims (defamation, false light, IIED, fraud, negligent misrepresentation) as properly stricken under the anti‑SLAPP analysis.
Issues
| Issue | Plaintiff's Argument (Sarver) | Defendant's Argument | Held |
|---|---|---|---|
| Choice of law after §1404 transfer | New Jersey law should apply because Sarver was domiciled in NJ | Apply transferor (NJ) choice rules; defendants urged California law applies given contacts | Applied NJ choice rules and concluded California law governs under Restatement §§145 & 6 (California has most significant relationship) |
| Timeliness of anti‑SLAPP motions | Motions filed ~1 year after complaint; §425.16(f) 60‑day rule makes them untimely | §425.16(f) timing conflicts with Federal Rules (esp. Rule 56); federal procedure governs | California's 60‑day timing provision does not apply in federal court; motions timely under federal rules |
| Whether film speech concerns public issue | Sarver: the alleged misappropriation of his private persona is not a public issue | Defendants: film addresses Iraq War, IEDs, soldiers’ experiences—matters of public concern | The film and character relate directly to public issues (Iraq War/IEDs); step one satisfied |
| Whether right of publicity claim survives First Amendment scrutiny | Sarver: filmmakers used his likeness without consent; right of publicity protects him | Defendants: film is expressive art transforming life into protected speech; applying publicity law here would be a content‑based restraint | Applying California right of publicity here would be a presumptively unconstitutional content‑based restriction; Sarver cannot show a compelling state interest—claim fails; anti‑SLAPP dismissal affirmed |
Key Cases Cited
- Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001) (federal courts need not apply state anti‑SLAPP discovery/timing provisions when they conflict with federal rules)
- Zacchini v. Scripps‑Howard Broad. Co., 433 U.S. 562 (1977) (right of publicity may be upheld where broadcast of an entire performance threatens its economic value)
- Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2010) (right of publicity protects against merchandising a celebrity’s image; anti‑SLAPP framework applied)
- Keller v. Electronic Arts, Inc., 724 F.3d 1268 (9th Cir. 2013) (right of publicity upheld where a video game reproduced player likenesses and interfered with economic value)
- Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal.4th 387 (Cal. 2001) (California’s right of publicity protects against unauthorized commercial exploitation of a celebrity’s image)