Managing IP Spotlights Drye Wit Blog Post by Partner Lee S. Brenner and Associate Andreas Becker
February 23, 2016

The Hurt Locker, winner of the 2010 Best Picture Academy Award, follows Sergeant First Class William James as team leader of a U.S. Army Explosive Ordinance Disposal unit in Iraq. Jeffrey Sarver, a real life sergeant who served as an EOD technician in Iraq in 2004 and 2005, says the James character was based on his true life experiences in Iraq, but that he did not consent to such use in the film. He sued the filmmakers in 2010.

Partner Lee S. Brenner and Associate Andreas Becker’s latest Drye Wit post – in which they discuss the Ninth Circuit’s order upholding the district court’s dismissal of Sarver’s case – was recently spotlighted in Managing IP. In their post, Lee and Andreas detailed the Ninth Circuit’s opinion and why the Ninth Circuit panel upheld the district court’s dismissal of the case.

The Ninth Circuit determined that, even assuming Sarver could establish all the elements of his right of publicity claim, the claim was nevertheless barred by the First Amendment and was properly dismissed pursuant to California’s anti-SLAPP statue. The anti-SLAPP statue states the defendant must first show the suit arises from an act made in connection with a public issue in furtherance of the defendant’s right to free speech. If the defendant makes such a showing, the court must evaluate whether the plaintiff has established a reasonable probability that he will prevail on the claim.

"In other words, the panel determined that allowing Sarver to pursue his right of publicity claim would infringe the defendants’ constitutional right to free speech," commented Lee and Andreas in Drye Wit. "Notably, the Court decided not to address the transformative use defense, and instead focused solely on the defendants’ First Amendment defense."