Sgt. Jeffrey Sarver v. Nicolas Chartier

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SGT. JEFFREY S. SARVER, No. 11-56986
Plaintiff-Appellant,
D.C. No.
v. 2:10-cv-09034-
JHN-JC
NICOLAS CHARTIER; SUMMIT
ENTERTAINMENT, LLC; KATHRYN
BIGELOW; THE HURT LOCKER LLC;
MARK BOAL; GREG SHAPIRO;
VOLTAGE PICTURES, LLC;
GROSVENOR PARK MEDIA, LP;
KINGSGATE FILMS INC.; TONY
MARK; DONALL MCKUSKER; FIRST
LIGHT PRODUCTIONS INC.,
Defendants-Appellees,
PLAYBOY ENTERPRISES, INC.,
Defendant.
2 SARVER V. CHARTIER
SGT. JEFFREY S. SARVER, No. 12-55429
Plaintiff-Appellant,
D.C. No.
v. 2:10-cv-09034-
JHN-JC
NICOLAS CHARTIER; SUMMIT
ENTERTAINMENT, LLC; KATHRYN
BIGELOW; THE HURT LOCKER LLC; OPINION
MARK BOAL; GREG SHAPIRO;
VOLTAGE PICTURES, LLC;
GROSVENOR PARK MEDIA, LP;
KINGSGATE FILMS INC.; DONALL
MCKUSKER; TONY MARK; FIRST
LIGHT PRODUCTIONS INC.,
Defendants-Appellees,
and
PLAYBOY ENTERPRISES, INC.,
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
SARVER V. CHARTIER 3
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.
4 SARVER V. CHARTIER
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
privacy, defamation, breach of contract, intentional infliction
of emotional distress, fraud, and constructive fraud/negligent
misrepresentation claims were properly dismissed.
SARVER V. CHARTIER 5
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.
6 SARVER V. CHARTIER
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
SARVER V. CHARTIER 7
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
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.
8 SARVER V. CHARTIER
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, 264 F.3d 832, 839 (9th Cir. 2001). Shortly
thereafter, Boal and Bigelow filed a separate motion to strike
on the same grounds.
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
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
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., 930 F.2d 777,
782 (9th Cir. 1991). We also review the district court’s grant of the
SARVER V. CHARTIER 9
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,
930 F.2d at 782. “First, we must determine whose choice of
law rules govern. Second, applying those rules, we determine
whose law applies.”2 Id. Typically, “a federal court sitting
in diversity applies the conflict-of-law rules of the state in
which it sits.” Id. (internal quotation marks omitted).
However, after a transfer under 28 U.S.C. § 1404, the choice-
of-law rules of the transferor court apply. See Newton v.
Thomason, 22 F.3d 1455, 1459 (9th Cir. 1994). We therefore
apply the choice-of-law rules of New Jersey.
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, 962 A.2d 453, 460 (N.J. 2008). Under that
defendants’ motions to strike under the anti-SLAPP statute de novo. Vess
v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003).
2
There is no dispute that there is a conflict of law between California
and New Jersey with regard to California’s anti-SLAPP statute, which has
no New Jersey analogue.
10 SARVER V. CHARTIER
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.
1
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
3
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).
SARVER V. CHARTIER 11
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.
2
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, 962 A.2d at 458, 461–63. Those factors include: “‘[1]
the place where the injury occurred, [2] the place where the
12 SARVER V. CHARTIER
conduct causing the injury occurred, [3] the domicile,
residence, nationality, place of incorporation and place of
business of the parties, and [4] the place where the
relationship, if any, between the parties is centered.’” Id. at
458 (quoting Restatement (Second) of Conflicts
§ 145(2)(a)–(d)).
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
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 V. CHARTIER 13
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., 229 F.3d 254, 267 (3d Cir. 2009) (applying this rule to
a claim of misappropriation of trade values involving
multistate harms). Finally, the fourth factor is neutral here
because the only relationship between Sarver and the
defendants centered around interviews for the Playboy article
that occurred in Iraq and Wisconsin.
Altogether, we conclude that the California contacts
predominate, and the section 145 factors weigh in favor of the
application of California law.
3
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
“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
14 SARVER V. CHARTIER
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.
SARVER V. CHARTIER 15
See Camp Jaycee, 962 A.2d at 461 (recognizing that analysis
under sections 145 and 6 can overcome presumptive rule).
Thus, as did the district court, we apply California’s anti-
SLAPP law.
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, 264 F.3d at 845 (“Procedural state laws are not
used in federal court if to do so would result in a direct
collision with a Federal Rule of Civil Procedure.” (internal
quotation marks omitted)).
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
16 SARVER V. CHARTIER
425.16(f) and (g). 264 F.3d at 846. We concluded that we
are not, agreeing with the district court that “[b]ecause the
discovery-limiting aspects of § 425.16(f) and (g) collide with
the discovery-allowing aspects of Rule 56, these aspects of
subsections (f) and (g) cannot apply in federal court.” Id.
(internal quotation marks omitted)).
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.4
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., 724 F.3d 1268, 1272 (9th
4
Because we conclude that section 425.16(f) does not apply here, we do
not reach the parties’ arguments regarding whether it was within the
District Court’s discretion to accept defendants’ anti-SLAPP motions
under California’s procedural requirements.
SARVER V. CHARTIER 17
Cir. 2013) [hereinafter Keller] (quoting Batzel v. Smith,
333 F.3d 1018, 1024 (9th Cir. 2003)). In relevant part, the
statute states:
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
18 SARVER V. CHARTIER
894, 903 (9th Cir. 2009) (quoting Wilson v. Parker, Covert &
Chidester, 50 P.3d 733, 739 (Cal. 2002)).
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., 52 P.3d 685, 694 (Cal. 2002)). Thus,
if the defendants fail to show that Sarver’s lawsuit involves
a matter of public concern, California’s anti-SLAPP
provisions are inapplicable on their face.
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, 599 F.3d at 906 (quoting Cal. Civ.
Proc. Code § 425.16(e)(4)). California’s intermediate
appellate courts have offered insight into how we should
conduct this analysis. The California Court of Appeal for the
First District has identified “three categories of public issues:
(1) statements ‘concern[ing] a person or entity in the public
eye’; (2) ‘conduct that could directly affect a large number of
people beyond the direct participants’; (3) ‘or a topic of
widespread, public interest.’” Id. (alteration in original)
(quoting Rivero v. Am. Fed’n of State, Cnty., & Mun. Emps.,
130 Cal. Rptr. 2d 81, 89–90 (Cal. Ct. App. 2003)).
California’s Court of Appeal for the Third District has
explained that “‘public interest’ does not equate with mere
curiosity,” but instead “a matter of public interest should be
SARVER V. CHARTIER 19
something of concern to a substantial number of people.”
Weinberg v. Feisel, 2 Cal. Rptr. 3d 385, 392 (Cal. Ct. App.
2003). 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.” Id. Finally, a “person cannot turn
otherwise private information into a matter of public interest
simply by communicating it to a large number of people.” Id.
at 393.
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,
55 Cal. Rptr. 3d 544 (Cal. Ct. App. 2007). In that case, Troy
Dyer sued the makers of the film Reality Bites, for what he
claimed to be an unflattering representation of his younger
self. See id. at 545–46. Affirming the denial of the
defendants’ anti-SLAPP motion, the California Court of
Appeal for the Second District held that, although the film
broadly addressed public matters such as the issues facing
Generation X, the film’s depiction of Dyer as “a rebellious
20 SARVER V. CHARTIER
slacker” failed to address any such issue, as there was “no
discernable public interest in Dyer’s persona.” Id. at 547–48.
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
SARVER V. CHARTIER 21
to “state and substantiate a legally sufficient claim.” Hilton,
599 F.3d at 908 (internal quotation marks omitted).
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., 25 Cal. 4th 387, 391 (2001). The elements of
a claim of misappropriation of the right of publicity are
“(1) the defendant’s use of the plaintiff’s identity; (2) the
appropriation of plaintiff’s name or likeness to defendant’s
advantage, commercially or otherwise; (3) lack of consent;
and (4) resulting injury.” Downing v. Abercrombie & Fitch,
265 F.3d 994, 1001 (9th Cir. 2001) (internal quotation marks
omitted). The parties disagree primarily over the second
element—whether the filmmakers appropriated Sarver’s
name or likeness in their production of The Hurt Locker.
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.
1
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
22 SARVER V. CHARTIER
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.”5
Reed, 135 S. Ct. at 2226.
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
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
5
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., 447 U.S. 557, 562–63 (1980).
SARVER V. CHARTIER 23
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.
2
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.
24 SARVER V. CHARTIER
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. 724 F.3d at 1268; see also Davis v. Elec. Arts, Inc.,
775 F.3d 1172 (9th Cir. 2015) (upholding right of publicity
action challenging EA’s use of professional football player
likenesses in a video game). We noted that the video game
“literally recreates [the football player] in the very setting in
which he has achieved renown,” Keller, 724 F.3d at 1271,
and interferes with his ability “to capitalize on his athletic
success,” which took “talent and years of hard work on the
football field” to build. Id. at 1277 n.9, 1281.7
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.
7
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).
SARVER V. CHARTIER 25
Likewise, we have upheld actions involving celebrities
challenging the use of their images in commercial
advertising. See, e.g., Newcombe v. Adolf Coors Co.,
157 F.3d 686, 691–94 (9th Cir. 1998) (California’s right of
publicity law applied to use of Dodgers pitcher Don
Newcombe’s image in printed beer advertisement); White v.
Samsung Elecs. Am., Inc., 971 F.2d 1395, 1397–99, 1401 n.3
(9th Cir. 1992) (same for use of Vanna White’s likeness as a
robot in an advertisement for VCRs). Although we have not
explicitly applied Zacchini in these cases, our opinions
indicate that the state’s interest is in preventing “the
exploitation of celebrity to sell products, and an attempt to
take a free ride on a celebrity’s celebrity value.” White,
971 F.2d at 1401 n.3.8
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.
3
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
8
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, 265 F.3d at 1001–02 & n.2. Because this case does not involve
purely commercial speech, we do not opine on the scope of that holding.
26 SARVER V. CHARTIER
inapposite. Second, and critically, unlike the plaintiffs in
Zacchini, Hilton, and Keller, Sarver did not “make the
investment required to produce a performance of interest to
the public,” Zacchini, 433 U.S. at 576, or invest time and
money to build up economic value in a marketable
performance or identity. Cf. Keller, 724 F.3d at 1280–81.
Rather, Sarver is a private person who lived his life and
worked his job. Indeed, while Sarver’s life and story may
have proven to be of public interest, Sarver has expressly
disavowed the notion that he sought to attract public attention
to himself. 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.
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., 603 P.2d 454, 455
(Cal. 1979). But a concurring opinion joined by three of California’s
seven Supreme Court justices (and implicitly approved by a fourth)
expressed broader doubt that the plaintiff could prevail even on the merits
of such a claim. The concurrence explained that, unlike in Zacchini, there
SARVER V. CHARTIER 27
simply a content-based speech restriction. As such, it is
presumptively unconstitutional, and cannot stand unless
Sarver can show a compelling state interest in preventing the
defendants’ speech. Because Sarver cannot do so, applying
California’s right of publicity in this case would violate the
First Amendment.
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.10 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
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, 780 F.3d 1244, 1250 (9th Cir. 2015).
28 SARVER V. CHARTIER
shunned or avoided, or which ha[d] a tendency to injure him
in his occupation.” Nygard, Inc. v. Uusi-Kerttula, 159 Cal.
App. 4th 1027, 1047–48 (2008) (internal quotation marks
omitted). Sarver contends that the film has interfered with his
employment prospects because it portrayed him as a bad
father, bereft of compassion, fascinated with war and death,
and disobedient.
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.12
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.”
12
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,
401 F.3d 1101, 1105 (9th Cir. 2005).
SARVER V. CHARTIER 29
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, 195 Cal. App. 4th 962, 970 (2011). This claim
fails for the same reasons that Sarver’s defamation claim
does; we agree with the district court that, even if the film’s
portrayal of Sarver were somehow false, such depiction
certainly would not “highly offend” a reasonable person.
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.”
30 SARVER V. CHARTIER
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
misrepresentation claims were properly dismissed.13
V
The judgment of the district court is AFFIRMED.14
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.
14
The motion of Motion Picture Association of America, Inc. and
Entertainment Merchants Association for leave to file a brief as amici
curiae is granted.