Thursday, February 18, 2016

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 concern.
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 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.”  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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