Wednesday, February 17, 2016

Sarver v. Chartier (9th Cir. - Feb. 17, 2016)

This opinion will affect your life.

Not in a big way.  At all.  But it'll affect the types of movies you see.

The Ninth Circuit essentially holds -- for the first time ever -- that the First Amendment trumps California's protection of the right of publicity for movies made about a matter of public interest.

As a result, film makers will now be able to make movies about public figures without buying the rights to that movie from that person (and, presumably, getting her approval of the portrayal).

This particular case involved The Hurt Locker.  The Ninth Circuit assumed (probably correctly) that this movie was indeed based on the life of IED specialist Sgt. Jeffrey Sarver in Iraq.  Normally that would mean that he had a right to publicity (at least in California).  But the Ninth Circuit held that the First Amendment precluded liability for telling the story.  Even though the movie was all about a particular person, the underlying "issues" -- the war in Iraq, the toll of IEDs, etc. -- were matters of public interest.  So the film makers could tell this story through the life of Sgt. Sarver.

This principle extends broadly to a plethora of other movies.  I expect that we'll see its contours played out in litigation during the next decade.  But the opinion is broad enough to cover tons of movies.  Probably books and other media as well.  Which now need not pay characters for their life stories in lots of contexts.


In Hollywood, anyway.  As well as for anyone who consumes the products thereof.

Which is pretty much everyone.