33-month decision gives few answers

Thirty-three months. That's how long it took the 9th U.S. Circuit Court of Appeals to decide that Army Sergeant Jeffrey Sarver does not have a viable publicity rights or other claim against those who produced the Academy Award-winning motion picture, "The Hurt Locker." In this long-awaited opinion, Sarver v. Chartier, 2016 DJDAR 1555 (Feb. 17, 2016), Circuit Judge Diarmuid O'Scannlain might have at least provided some helpful guidance about how the circuit's own plaintiff-friendly video game jurisprudence can be reconciled with a ruling against Sarver. No such luck.

The case reached the 9th Circuit from District Judge Jacqueline Nguyen's October 2011 ruling dismissing Sarver's lawsuit on an anti-SLAPP motion. Nguyen found that though Sarver and the film's Will James character shared "similar physical characteristics and idiosyncrasies, 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." Accordingly, the district court held that Sarver's publicity rights claims satisfied the so-called "transformative use" test and should be dismissed - together with his ancillary claims for false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud and constructive fraud/negligent misrepresentation.

In the 41/2 years that intervened between the district court's decision and O'Scannlain's affirmance, the 9th Circuit decided two cases - In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 724 F.3d 1268 (9th Cir. 2013) [hereinafter "Keller"] and Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015) - that protected the publicity rights of college and professional athletes, whose avatars appeared in fantasy football video games, against First Amendment challenges. Keller and Davis did so notwithstanding the late Justice Antonin Scalia's 7-2 opinion in Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011), in which he observed: "Like the protected books, plays, and movies that preceded them, video games communicate ideas - and even social messages - through familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection."

How does O'Scannlain reconcile a decision against a character resembling Sarver in "The Hurt Locker" with the 9th Circuit's jurisprudence protecting the publicity rights of video game avatars? A careful parsing of the Sarver opinion is decidedly unhelpful. Roughly half of O'Scannlain's 30-page ruling is devoted to a discussion of choice-of-law principles and to the procedural interplay of California Code of Civil Procedure Section 425.16(f) and Rule 56 of the Federal Rules of Civil Procedure. He then spends an additional five pages addressing the relatively obvious proposition that "The Hurt Locker" meets the anti-SLAPP statute's first prong "public issue" inquiry because its "focus on the conduct of the Iraq War satisfies California's standards for determining whether an issue is one of public concern.... That the film won several Oscars and reached widespread audiences only buttresses our conclusion."

Given the 1,000-plus days that the Sarver opinion fermented, the parties themselves - and those of us who look to the 9th Circuit for guidance in such matters - fully expected that at least the remaining several pages of O'Scannlain's decision would have sought to explain how characters depicted in two types of expressive works of equal First Amendment dignity can be treated so differently. Yet not only does the 9th Circuit fail to address its own disparate treatment of these two media - video games and movies - the Sarver decision appears to be both factually disingenuous and to turn on the narrowest of possible grounds that provides virtually no assistance to the producers of future documentaries, biographies or other films using recognizable persons - or to the persons depicted.

Instead, O'Scannlain's opinion pays obeisance to Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 563-64 (1977), the Supreme Court's only foray into the world of publicity rights, and its holding that "the broadcast of a performer's entire performance did not violate the First Amendment." The Zacchini case involved a local television station's unauthorized broadcast of a human cannonball's entire 15-second act. The Sarver court then cites Keller, which dismissed a First Amendment challenge to the portrayal of college football players as avatars in Electronic Arts' "NCAA Football" series of video games, for the proposition that the game "'literally recreates [the football player] in the very setting in which he has achieved renown,' 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."

Based upon these rulings, O'Scannlain concludes: "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." Yet this is no more than a classic ipse dixit. Didn't "The Hurt Locker" "literally recreate" Sarver "in the very setting [Iraq] in which he has achieved renown"? And doesn't the movie "capitalize on his [bomb-defusing] success" which took "'talent and years of hard work on the [battle] field' to build"? The narrow distinction that the 9th Circuit attempts to draw to justify its ruling falls of its own weight.

More regrettably, however, the Sarver opinion gives no guidance to documentarians or to biopic/docudrama producers who wish to develop projects featuring celebrities who did spend time and money proffering performances or developing personas that do have "economic value." Does the First Amendment protect a film portraying the development of "The Little Tramp" character created by Charlie Chaplin? How would O'Scannlain have analyzed the allusive "Citizen Kane"? Will unauthorized biographical films like "The Social Network," "Frost/Nixon" or Joshua Michael Stern's 2013 "Jobs," much less Alex Gibney's 2015 "Steve Jobs" documentary, survive future anti-SLAPP motions by the persons or estates of those they depict? A review of the Sarver opinion yields no answer.

Indeed, the unfortunate reality is that O'Scannlain's decision calls to mind the February 1936 letter that then-Justice Harlan Fiske Stone wrote to then-Harvard Law School Professor Felix Frankfurter: "I can hardly see the use of writing judicial opinions unless they are to embody methods of analysis and of exposition which will serve the profession as a guide to the decision of future cases. If they are not better than an excursion ticket, good for this day and trip only, they do not serve even as protective coloration of the writer of the opinions and would much better be left unsaid."