Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT S GT . J EFFREY S. S ARVER , No. 11-56986 Plaintiff-Appellant , D.C. No.
v. 2:10-cv-09034- JHN-JC N ICOLAS C HARTIER ; S UMMIT E NTERTAINMENT , LLC; K ATHRYN B IGELOW ; T HE H URT L OCKER LLC; M ARK B OAL ; G REG S HAPIRO ; V OLTAGE P ICTURES , LLC;
G ROSVENOR P ARK M EDIA , LP; K INGSGATE F ILMS I NC .; T ONY M ARK ; D ONALL M C K USKER ; F IRST L IGHT P RODUCTIONS I NC .,
Defendants-Appellees , P LAYBOY E NTERPRISES , I NC .,
Defendant . S . GT J EFFREY S. S ARVER , No. 12-55429 Plaintiff-Appellant D.C. No.
v. 2:10-cv-09034- *2 JHN-JC N ICOLAS C HARTIER ; S UMMIT E NTERTAINMENT , LLC; K ATHRYN B IGELOW ; T HE H URT L OCKER LLC; OPINION M ARK B OAL ; G REG S HAPIRO ; V OLTAGE P ICTURES , LLC;
G ROSVENOR P ARK M EDIA , LP; K INGSGATE F ILMS I NC .; D ONALL M C K USKER ; T ONY M ARK ; F IRST L IGHT P RODUCTIONS I NC .,
Defendants-Appellees and
P LAYBOY E NTERPRISES , I NC .,
Defendant . Appeal from the United States District Court for the Central District of California Jacqueline H. Nguyen, District Judge, Presiding Argued and Submitted May 9, 2013 Submission Vacated May 9, 2013 Resubmitted December 24, 2015 Pasadena, California Filed February 17, 2016 Before: Diarmuid F. O’Scannlain, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges. Opinion by Judge O’Scannlain
SUMMARY [*]
California Anti-SLAPP / Choice of Law
The panel affirmed the district court’s dismissal, pursuant to filmmakers/defendants’ motions to strike the complaint under Cal. Civ. Proc. Code § 425.16, California’s Anti- Strategic Lawsuit Against Public Participation (anti-SLAPP) statute, of plaintiff Army Sergeant Jeffrey Sarver’s lawsuit relating to the Oscar-winning film The Hurt Locker .
Sarver contended that Will James, The Hurt Locker ’s main character, was based on his life and experiences when he served as an United States Army explosive ordnance disposal technician in Iraq; that he did not consent to such use; and that some scenes in the film falsely portrayed him in a way that harmed his reputation.
The panel applied the choice-of-law rules of New Jersey, and concluded that the California contacts predominated, and the Restatement (Second) of Conflicts § 145 factors weighed in favor of the application of California law. The panel considered the section 6 Second Restatement principles, and concluded that California had the most significant [*] This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. relationship to this litigation, which was sufficient to overcome any presumption of Sarver’s domicile, wherever that may be. The panel applied California’s anti-SLAPP law.
The panel held that Cal. Civ. Proc. Code § 425.16(f), which generally provides that an anti-SLAPP motion be filed within 60 days of the service of the complaint, did not apply in federal court. The panel held that under Federal Rule of Civil Procedure 56, the defendants’ anti-SLAPP motions were timely filed.
Turning to the merits of the defendants’ anti-SLAPP motions, the panel applied the statute’s two-step analysis. First, the panel held that The Hurt Locker film and the narrative of its central character Will James spoke directly to issues of a public nature. Second, the panel held that The Hurt Locker was speech that was fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life and transform them into art, such as movies. The panel held that because Sarver could not show a compelling state interest in preventing the defendants’ speech, applying California’s right of publicity law – which prohibits a person from using a celebrity’s name or likeness without consent – in this case would violate the First Amendment. The panel concluded that because Sarver could not state a right of publicity claim, the district court did not err in granting the defendants’ anti-SLAPP motion regarding the claim.
The panel concluded that Sarver’s false light invasion of *4 privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and constructive fraud/negligent misrepresentation claims were properly dismissed.
COUNSEL
Michael R. Dezsi, Law Office of Michael R. Dezsi, PLLC, Detroit, Michigan, argued the cause and filed the briefs for the Plaintiff-Appellant.
Jon-Jamison Hill, Eisner, Kahan & Gorry, Beverly Hills, California; David Halberstadter, Katten Muchin Rosenman LLP, Los Angeles, California; and Jeremiah T. Reynolds, Kinsella Weitzman Iser Kump & Aldisert LLP, Santa Monica, California, each argued the cause and filed the brief for the Defendants-Appellees. With them on the brief were Timothy J. Gorry and Jackie M. Joseph, Eisner, Kahan & Gorry, Beverly Hills, California; Rebecca F. Ganz, Katten Muchin Rosenman LLP, Los Angeles, California; and Dale F. Kinsella, Kinsella Weitzman Iser Kump & Aldisert LLP, Santa Monica, California.
Kelli L. Sager, Davis Wright Tremaine LLP, Los Angeles, California, filed a brief on behalf of amici curiae Motion Picture Association of America, Inc. And Entertainment Merchants Association in support of the Defendants- Appellees. With her on the brief was Karen A. Henry, Davis Wright Tremaine LLP, Los Angeles, California.
S ARVER V . C HARTIER
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the district court properly applied California’s Anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute when it dismissed Army Sergeant Jeffrey Sarver’s lawsuit relating to the Oscar- winning film The Hurt Locker .
I A Sergeant Jeffrey Sarver joined the United States Army in 1991. During parts of 2004 and 2005, he served as one of approximately 150 Explosive Ordnance Disposal (EOD) technicians in Iraq. Sarver led one of three teams in the 788th Ordnance Company whose principal duty was to identify, make safe, and dispose of improvised explosive devices.
In December 2004, Mark Boal, a journalist working for Playboy magazine, was embedded with the 788th out of Camp Victory in Baghdad, Iraq. Boal followed Sarver for a significant amount of time and took photographs and video of him while he was on and off duty. After Sarver returned to the United States, Boal conducted additional interviews with him in Wisconsin.
Boal wrote an article focused on Sarver’s life and experiences in Iraq, which was published in the August/September 2005 issue of Playboy . A condensed version of that article was later published in Reader’s Digest . The Playboy article contained two photographs of Sarver in addition to other personal information about him. Sarver alleges that he never consented to the use of his name and likeness in the Playboy article, that he objected to it after reviewing an advance copy, and that he attempted to have portions of the article removed before its publication in Reader’s Digest .
Boal later wrote the screenplay for the film that became *6 The Hurt Locker , which was released in June 2009 while Sarver was stationed at the Picatinny Arsenal in New Jersey. Sarver contends that Will James, the movie’s main character, is based on his life and experiences, pointing to characteristics of James and events in the movie that allegedly mirror his life story. Sarver asserts that he did not consent to such use and that several scenes in the film falsely portray him in a way that has harmed his reputation.
B
In March 2010, Sarver filed suit in the District of New
Jersey against Boal, Kathryn Bigelow, the film’s director,
Nicholas Chartier, its producer, and numerous corporate
defendants (collectively the “defendants”), alleging causes of
action 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 defendants moved to
dismiss Sarver’s complaint pursuant to Federal Rules of Civil
Procedure 12(b)(2) and 12(b)(3), or, alternately, to transfer
venue to the Central District of California pursuant to
28 U.S.C. § 1404(a). In response, the District of New Jersey
transferred the case to the Central District of California.
On February 1, 2011, Chartier and some of the corporate
defendants filed a motion to strike Sarver’s complaint under
Cal. Civ. Proc. Code § 425.16, California’s “anti-SLAPP”
statute, which was “enacted to allow early dismissal of
meritless first amendment cases aimed at chilling expression
through costly, time-consuming litigation.”
Metabolife Int’l,
Inc. v. Wornick
,
Four days before hearing oral argument, the district court released a tentative order that would have allowed Sarver to proceed on his right of publicity claim but would have dismissed all other claims pursuant to the anti-SLAPP statute. However, in its final order, the district court reversed course, striking Sarver’s complaint in its entirety. The district court concluded that California’s anti-SLAPP statute applied because the defendants were engaged in the exercise of free speech in connection with a public issue, and also that “[e]ven assuming that [Sarver] and Will James share similar physical characteristics and idiosyncracies, a significant *7 amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie.” The district court concluded that the film’s use of Sarver’s identity was transformative and dismissed all of Sarver’s claims.
Sarver timely appealed.
[1]
We have jurisdiction to review the district court’s final order pursuant
to 28 U.S.C. § 1291. We review the district court’s choice of law analysis
de novo.
Schoenberg v. Exportadora de Sal, S.A. de C.V.
,
II
Before reaching the merits of Sarver’s claims, we must determine whether the district court properly applied California law instead of New Jersey law and whether the defendants’ anti-SLAPP motion was timely filed. Sarver contends that the district court erred on both counts, arguing that the district court should have applied New Jersey law and that the anti-SLAPP motion was not timely filed.
A
Our “choice of law inquiry has two levels.”
Schoenberg
The New Jersey Supreme Court has adopted the choice-
of-law approach set forth in the Restatement (Second) of
Conflict of Laws (“Second Restatement”).
P.V. ex rel. T.V. v.
Camp Jaycee
,
10 S ARVER V . C HARTIER approach, we must first consider the specific provisions of the Second Restatement which set forth the presumptive rule for the claims at issue. See id. at 461. Once this presumptive rule is established, we must then consult the general tort principles outlined in section 145 of the Second Restatement, see id. at 461–63, before finally considering the two states’ competing interests under the general principles outlined in section 6, id. at 455. We address each in turn.
Both sections 150 and 153 of the Second Restatement are relevant when determining the presumptive rule for Sarver’s claims. [3] Fortunately, “essentially the same choice-of-law rules are applicable to the two torts.” Restatement (Second) of Conflicts § 152 cmt. d. Section 150 addresses multistate defamation that arises from, among other things, “exhibition of a motion picture” or “similar aggregate communication.” Id. § 150(1). This section provides that rights and liabilities regarding defamation claims are “determined by the local law of the state which . . . has the most significant relationship to the occurrence and the parties.” Id. Section 153, which addresses multistate invasion of privacy, provides the same rule. Section 153 explains that the state with the most significant relationship “will usually be the state where the plaintiff was domiciled at the time if the matter complained of was published in that state.” See also Hanley v. Trib. Publ’g Co. , 527 F.2d 68, 70 (9th Cir. 1975) (“In cases of Sarver erroneously contends that section 146, which governs actions for personal injury, applies. However, the Second Restatement expressly excludes “injuries to a person’s reputation” and “the violation of a person’s right of privacy” from those injuries classified as “personal injuries.” Restatement (Second) of Conflicts § 146 cmt. b (1971). *9 defamation, [the Second Restatement factors] normally would call for application of the law of the plaintiff’s domicil.”).
Determining where Sarver was domiciled is not straightforward. Sarver contends that his domicile is New Jersey, and calls on us to enforce the laws of that state. However, Sarver has provided little support for his contention. Without citation to the record, Sarver asserts that he lived in New Jersey for approximately two years while stationed there, including at the time The Hurt Locker was released in theaters. Even if we credit Sarver’s assertion, this statement alone is insufficient to establish the state as his legal domicile. See 13E Charles A. Wright et al., Federal Practice & Procedure § 3617 (3d ed. 2015) (“Service personnel are presumed not to acquire a new domicile when they are stationed in a place pursuant to orders; they retain the domicile they had at the time of entry into the service.”). Sarver does not appear to have marshaled other indicia of domicile in New Jersey, for example that he obtained a New Jersey driver’s license, registered to vote in the state, or acquired property there. In sum, other than Sarver’s own assertion, we have little basis to conclude that New Jersey was indeed his legal domicile at the time The Hurt Locker was released.
Even assuming
arguendo
that New Jersey was Sarver’s
domicile would not end our inquiry. As the New Jersey
Supreme Court would, we must next consider the factors
enumerated in section 145 of the Second Restatement, which
presents the “general rule” that informs all torts.
Camp
Jaycee
,
Here, the second and third factors weigh strongly in favor of application of California law. The conduct causing the alleged injury—the production of The Hurt Locker —took place in California. Moreover, all of the corporate defendants other than Playboy Enterprises are incorporated and alleged *10 to be conducting business in California. And, although Boal is a citizen of New York and Playboy Enterprises is a citizen of Illinois and Delaware, Sarver alleges that both conduct business in California. For his part, although Sarver contends that he was domiciled in New Jersey, as explained above, he has failed to support that contention.
The first and fourth factors do not weigh strongly in favor
of either state. First, it is difficult to identify, let alone place
great weight upon, the location of Sarver’s alleged injury.
Sarver insists that New Jersey was the primary location of his
injuries, because that is where he was best known to his Army
cohorts. But even that contention is somewhat belied by
Sarver’s admission that he and fellow service members
traveled to view the film at its premiere in New York—not in
New Jersey. Further, Sarver’s claims of reputational harm by
those who knew him would have presumably been felt not
only in the location he lived in 2009, but also where his
various friends and family live and in the states in which he
has lived since the film’s release. The multistate nature of
Sarver’s alleged harms is central to the choice-of-law
analysis. Because the film was distributed nationwide and
Sarver’s alleged injuries would most likely have occurred in
multiple states, “the place of injury will
not
play an important
role in the selection of the state of applicable law.”
Restatement (Second) of Conflicts § 145 cmt. e (emphasis
added);
see also BP Chems. Ltd. v. Formosa Chem. & Fibre
Corp.
,
Altogether, we conclude that the California contacts predominate, and the section 145 factors weigh in favor of the application of California law.
Finally, we consider the section 6 principles, which the New Jersey Supreme Court has identified as: “(1) the interests of interstate comity; (2) the interests of the parties; (3) the interests underlying the field of tort law; (4) the interests of judicial administration; and (5) the competing interests of the states.” Camp Jaycee , 962 A.2d at 463 (internal quotation marks omitted). In effect, this analysis *11 “focus[es] primarily on the interests of the two states.” Peter Hay, Patrick J. Borchers & Symeon C. Symeonides, Conflict of Laws 888 (5th ed. 2010). We apply these principles to “determine whether more or less weight should be ascribed to those contacts” we have just discussed. Camp Jaycee , 962 A.2d at 468.
In the text of the statute itself, California has expressed a 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. See Cal. Civ. Proc. Code § 425.16(a). To this end, courts are instructed to construe California’s statute “broadly.” Id.
Although New Jersey has declined to establish a similar law, its courts have allowed defendants to bring a claim for malicious use of process to protect against suspected SLAPP actions. See LoBiondo v. Schwartz , 970 A.2d 1007, 1022 (N.J. 2009). In this regard, New Jersey seems to have staked something of a middle ground to guard against SLAPP lawsuits. Indeed, in an opinion declining to create a specific anti-SLAPP cause of action, New Jersey’s Appellate Division nevertheless acknowledged that SLAPP suits require some level of “counteraction.” Lobiondo v. Schwartz , 733 A.2d 516, 533 (N.J. Super. Ct. App. Div. 1999).
On balance, the interests of interstate comity and the competing interests of the states tilt in favor of applying California law. 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. Moreover, because the vast majority of the parties in this action are citizens of or do business in California, the parties’ expectations likewise tilt in favor of California law.
Thus, like our analysis under section 145, our section 6 inquiry weighs in favor of applying California law. Taken together, we conclude that California has the most significant relationship to this litigation, which is sufficient to overcome any presumption of Sarver’s domicile, wherever that may be.
S ARVER V . C HARTIER
See Camp Jaycee
,
B
Having determined that California’s anti-SLAPP law applies, we must consider whether the defendants’ anti- SLAPP motions—which were filed almost one year after Sarver filed his complaint—were timely. Sarver contends that they were not, relying on Cal. Civ. Proc. Code § 425.16(f), which provides that an anti-SLAPP motion “may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.”
Sarver asserts that the defendants showed no good cause
for their filing delay and that the district court therefore
abused its discretion in accepting the anti-SLAPP motions so
far beyond California’s 60-day time frame. The defendants
counter that California’s timing provision does not apply in
federal court, because it is a procedural device that conflicts
directly with Federal Rule of Civil Procedure 56.
See, e.g. Metabolife
,
We have previously recognized that the requirements set
forth in subsections 425.16(f) and (g) fundamentally collide
with federal courts’ rules of procedure. In
Metabolife
, we
considered whether federal courts are obliged to adhere to the
expedited discovery process established under subsections
425.16(f) and (g).
So, too, do the timing controls imposed by section 425.16(f) directly collide with the more permissive timeline Rule 56 provides for the filing of a motion for summary judgment. See Fed. R. Civ. P. 56(b) (permitting parties to file a motion for summary judgment “at any time until 30 days after the close of all discovery”). Although section 425.16(f) does not prohibit the filing of an anti-SLAPP motion after 60 days, it certainly restricts a party’s ability to do so in a way Rule 56 would not. We therefore decline to apply the statute’s 60-day time frame in federal court, and we refer instead to our own rules of procedure. Under those rules, the defendants’ anti-SLAPP motions were timely filed.
III
Turning to the merits of the defendants’ anti-SLAPP
motions, we have previously observed that “California’s anti-
SLAPP statute is designed to discourage suits that
‘masquerade as ordinary lawsuits but are brought to deter
common citizens from exercising their political or legal rights
or to punish them for doing so.’”
In re NCAA Student-Athlete
Name & Likeness Licensing Litig.
,
Cir. 2013) [hereinafter
Keller
] (quoting
Batzel v. Smith
A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
Cal. Civ. Proc. Code § 425.16(b)(1).
Tracking the language of the statute, we evaluate anti-
SLAPP motions in two steps. The defendant must first
“make a prima facie showing that the plaintiff’s suit arises
from an act by the defendant made in connection with a
public issue in furtherance of the defendant’s right to free
speech under the United States or California Constitution.”
Keller
, 724 F.3d at 1272–73 (internal quotation marks
omitted). Second, if the defendant has made such showing,
we evaluate whether the plaintiff has “establish[ed] a
reasonable probability that the plaintiff will prevail on his or
her . . . claim.”
Id.
(internal quotation marks omitted)
(alterations in original). “‘Put another way, the plaintiff must
demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the
plaintiff is credited.’”
Hilton v. Hallmark Cards
, 599 F.3d
894, 903 (9th Cir. 2009) (quoting
Wilson v. Parker, Covert &
Chidester
,
A
For the defendants’ anti-SLAPP motions to succeed, they
must first show that “‘the act or acts of which the plaintiff
complains were taken in furtherance of [the defendants’] right
of petition or free speech under the United States or
California Constitution in connection with a public issue.”’
Hilton
, 599 F.3d at 903 (citing
Equilon Enters., LLC v.
Consumer Cause, Inc.
,
Interpreting
the California Supreme Court’s
pronouncements, we have “construe[d] ‘public issue or public
interest’ . . . broadly in light of the statute’s stated purpose to
encourage participation in matters of public importance or
consequence.”
Hilton
,
The defendants rightly contend that the Iraq War was a matter of significant and sustained public attention, as was the use of improvised explosive devices (IEDs) by insurgents during the war. Accordingly, the defendants conclude that The Hurt Locker ’s portrayal of those issues necessarily presents a matter of public concern. Sarver counters that our analysis should not be so encompassing. Rather than ask whether the film’s portrayal of the Iraq War raises a question of public concern, Sarver calls on us to ask specifically whether the defendants’ alleged misappropriation of his private persona is of public interest. Under this standard, Sarver concludes that—because he was not personally in the public’s eye before this film—the defendants cannot satisfy the first step of the anti-SLAPP analysis.
Sarver’s argument relies principally on
Dyer v. Childress
The nature of Sarver’s occupation and the context in which his alleged portrayal appears in The Hurt Locker set him apart from Dyer. Unlike Dyer’s 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. Importantly, the film’s alleged portrayal of Sarver’s persona specifically centers around that work. Although the film allegedly incorporates personal characteristics of Sarver—for example his appearance, his temperament, and parts of his biography—such characteristics are displayed only in the context of the character’s experiences fighting in Iraq. In other words, 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.
We conclude that this focus on the conduct of the Iraq War satisfies California’s standards for determining whether an issue is one of public concern. That war, its dangers, and soldiers’ experiences were subjects of longstanding public attention. Indeed, The Hurt Locker , with its unique focus on IED disposal teams, contributed to that attention. That the film won several Oscars and reached widespread audiences only buttresses our conclusion. The film and the narrative of its central character Will James speak directly to issues of a public nature.
B
Having satisfied the public interest inquiry, we turn to the
second step in the analysis, where the burden shifts to Sarver
to “state and substantiate a legally sufficient claim.”
Hilton
California’s right of publicity law “prohibit[s] any other
person from using a celebrity’s name, voice, signature,
photograph, or likeness for commercial purposes without the
[celebrity’s] consent.”
Comedy III Prods., Inc. v. Gary
Saderup, Inc.
,
But, even assuming for the sake of argument that Sarver can establish all elements of his claim, the defendants contend that their production of the film is nevertheless protected under the First Amendment. That is, they argue that allowing Sarver to pursue his right of publicity action against them would infringe their constitutional right to free speech. Because it is dispositive, we consider that argument first.
The First Amendment, applicable to the states through the
Fourteenth Amendment, forbids laws “abridging the freedom
of speech.” U.S. Const. amend. I;
Reed v. Town of Gilbert
135 S. Ct. 2218, 2226 (2015). State laws, including state
common law, may not “restrict expression because of its
message, its ideas, its subject matter, or its content.”
Police
Dep’t of City of Chi. v. Mosley
, 408 U.S. 92, 95 (1972).
“Content-based laws—those that target speech based on its
communicative content—are presumptively unconstitutional
and may be justified only if the government proves that they
are narrowly tailored to serve compelling state interests.”
Reed
,
By its terms, California’s right of publicity law clearly
restricts speech based upon its content. The Supreme Court
has reviewed the constitutionality of a state’s right of
publicity law only once, concluding that application of such
a law to prevent the broadcast of a performer’s entire
performance did not violate the First Amendment. In
Zacchini v. Scripps-Howard Broadcasting Co.
, a journalist
videotaped and broadcasted Zacchini’s entire 15-second
“human cannonball” act. 433 U.S. 562, 563–64 (1977).
Zacchini brought an action against the television station for
violation of his right of publicity under Ohio law.
Id.
at 564.
In rejecting the station’s First Amendment defense, the Court
first considered the nature of Ohio’s interest in enforcing the
*18
law. According to the Court, 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.”
Id.
at
573, 576 (internal quotation marks omitted). The Court
This case does not concern a law that governs commercial speech or
speech that falls within one of a few traditional categories which receive
lesser First Amendment protection.
See United States v. Stevens
, 559 U.S.
460, 468 (2010);
Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n
of N.Y.
,
analogized this interest to those 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. Id. at 573–76.
The Court balanced this state interest against the station’s countervailing First Amendment interests in broadcasting Zacchini’s performance. It determined that the First Amendment interest in broadcasting the entire performance (as opposed to just using Zacchini’s name or picture) was minimal 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.” Id. (internal quotation marks omitted). The Court explained that such a broadcast is tantamount to “preventing [Zacchini] from charging an admission fee” to view what was “the product of [his] own talents and energy, the end result of much time, effort, and expense.” Id. at 575–76. Thus, because the “broadcast of a film of [Zacchini]’s entire act pose[d] a substantial threat to the economic value of that performance,” and protection provided an “economic incentive” for him to develop such a performance of public interest, the Court held that the First Amendment did not prevent Ohio from protecting Zacchini’s right of publicity. Id. at 575–79. The Court has not revisited the question of when a state’s right of publicity law is consistent with the First Amendment since Zacchini .
We, however, have interpreted
Zacchini
to uphold the
right of publicity in a variety of contexts where the defendant
appropriates the economic value that the plaintiff has built in
an identity or performance. For example, in
Hilton v.
*19
24
S ARVER V . C HARTIER
Hallmark Cards
, we held that Paris Hilton could pursue a
right of publicity claim for Hallmark’s use of her image and
catch phrase (“that’s hot”) from her television show in one of
its greeting cards. 599 F.3d at 899. In doing so, we
suggested that “merely merchandising a celebrity’s image
without that person’s consent, the prevention of which is the
core of the right of publicity,” is not protected by the First
Amendment.
[6]
Id.
at 910. Similarly, in
Keller v. Electronic
Arts, Inc.
, we upheld an action by a college football player
who sought to prevent the use of his likeness in EA’s video
game.
[6] That case addressed the First Amendment only through the lens of California’s “transformative use” doctrine, an affirmative defense formulated by the California Supreme Court which aims to strike a balance between First Amendment interests and a plaintiff’s asserted right of publicity. We need not and do not reach the question of whether such defense applies in this case. These cases follow California decisions, which have likewise held that
the state’s right of publicity law protects celebrities from appropriation of their performance or persona. See Comedy III , 25 Cal. 4th at 391 (registered owner of The Three Stooges act was permitted to sue an artist who sold lithographs and t-shirts created from his charcoal drawing of The Three Stooges); No Doubt v. Activision Publ’g, Inc. , 192 Cal. App. 4th 1018, 1023 (2011) (rock band No Doubt was permitted to sue video game company that used computer generated images of the band in its video game).
*20
Likewise, we have upheld actions involving celebrities
challenging the use of their images in commercial
advertising.
See, e.g.
,
Newcombe v. Adolf Coors Co.
,
In sum, our 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.
Such lines of cases are not applicable here.
First,
The Hurt Locker
is not speech proposing a
commercial transaction. Accordingly, our precedents relying
on the lesser protection afforded to commercial speech are
In one case, we also upheld a right of publicity action brought by
private individuals challenging the use of their photo in retail advertising
under the less protective standards applicable to commercial speech.
See
Downing
,
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.
If California’s right of publicity law applies in this case,
[9]
it is
[9]
And it is not clear that California would extend its right of publicity to
Sarver’s situation. In a case decided shortly after
Zacchini
, the California
Supreme Court barred a right of publicity action filed by the nephew of
actor Rudolph Valentino based upon the unauthorized exhibition of a
“fictionalized version” of Valentino’s life on television, upon the
conclusion that such right “expires upon the death of the person so
protected.”
Guglielmi v. Spelling-Goldberg Prods.
,
Accordingly, Sarver cannot “state and substantiate a legally sufficient” right of publicity claim, Hilton , 599 F.3d at 908, and the district court did not err in granting the defendants’ anti-SLAPP motions regarding such claim.
IV
Sarver also contends that his claims for defamation, false light, and intentional infliction of emotional distress were improperly dismissed. We address each in turn.
First
, to prevail on his defamation claim, Sarver must
show that
The Hurt Locker
depicted him in a way that is
“provably false” and which exposed him “to hatred,
contempt, ridicule, or obloquy, or which cause[d] him to be
*22
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.”
Id.
at 464 (Bird, C.J., concurring). The justices
cautioned that the defendants’ fictionalized portrayal of Valentino’s life
was entitled to greater First Amendment protection than the conduct in
Zacchini
, and explained that they wrote in an effort “to define one
boundary of this state’s common law right of publicity.”
Id.
[10]
Because Sarver failed in his opening brief to argue any error
concerning the dismissal of his breach of contract, fraud, and negligent
misrepresentation claims, he has waived such arguments on appeal.
See
United States v. Marcia-Acosta
,
Sarver’s allegations do not stand up in light of the film as a whole. We agree with the district court that 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. Directly contrary to Sarver’s allegations, James exhibits compassion for various Iraqi citizens, including a young boy and a man trapped in a suicide vest; appears to care for and miss his son; and occasionally departs from military protocol in an effort to save human lives. [11] Even if Sarver is correct that certain aspects of Will James’s character are unflattering, it does not support the conclusion that the film’s overall depiction of James could reasonably be seen to defame Sarver. [11] Further, many of Sarver’s allegations are not “provably false.” For example, even if the film did show James to be fascinated with war or death, many of the scenes supposedly supporting such a conclusion resemble statements Sarver made to Boal, such as that Sarver “love[s]” working with explosives and that “[a]nything that goes boom” is “addictive.” We do not agree with Sarver that the district court engaged in
impermissible factfinding in reaching this conclusion. Under California
law, it is a question of law for the court whether a challenged statement is
reasonably susceptible to a defamatory interpretation.
See In re Sicroff
S ARVER V . C HARTIER
Second
, to prevail on his false light invasion of privacy
claim, Sarver must show that
The Hurt Locker
publicly
portrayed him “in a false light that would be highly offensive
to a reasonable person.”
Price v. Operating Eng’rs Local
Union No. 3
,
Finally , to prevail on his claim for intentional infliction of emotional distress, Sarver must show that the defendants intentionally or recklessly caused him to suffer “severe or extreme emotional distress” through their “extreme and outrageous conduct.” Hughes v. Pair , 209 P.3d 963, 976 (Cal. 2009). We agree with the district court that Sarver has not alleged facts sufficient to show that any portrayal of him in The Hurt Locker was the result of “extreme” or “outrageous” conduct that induced severe or extreme emotional distress.
Boal was embedded with Sarver’s unit, interviewed Sarver, and ultimately published a factual account of those experiences. It is not outrageous that Boal’s factual account then led to a fictionalized screenplay and film. This is especially true given Sarver’s numerous allegations that the film did not transform his personality, but instead adhered closely to Boal’s nonfiction account and Sarver’s actual experiences. Although Sarver suggests the defendants made substantial use of his identity and persona, he has not alleged facts to support the notion that any such use was somehow “outrageous.”
In sum, we conclude that Sarver’s false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and constructive fraud/negligent *24 misrepresentation claims were properly dismissed.
V
The judgment of the district court is AFFIRMED [13] In addition, we reject as moot Sarver’s challenge to the district court’s denial of his motion to stay execution and waive bond pending appeal. The motion of Motion Picture Association of America, Inc. and Entertainment Merchants Association for leave to file a brief as amici curiae is granted.