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Timothy Gorry, Jon-Jamison Hill and Jackie Joseph Victorious with Ninth Circuit Decision

03/04/2016

Timothy Gorry, Jon-Jamison Hill and Jackie Joseph secured, on behalf of Nic Chartier and Voltage Pictures, a major victory with wide ranging implications for the Entertainment Industry when the Ninth Circuit affirmed the dismissal of the plaintiff’s complaint in Sarver v. Nicolas Chartier, et. al., U.S.D.C. No. 2:10-cv-09034- JHN-JC (“Sarver”).  

In Sarver, the plaintiff, a serving member of the U.S. Army had sued Theodora Oringher’s clients in New Jersey claiming that they had misappropriated his name, likeness and story to make the Academy Award™ winning film The Hurt Locker and claimed damages equal to the profits made by the film.  After successfully transferring the case from New Jersey to Los Angeles, an Anti-SLAPP motion was filed seeking dismissal on the grounds that the film’s creators and producers actions were protected by the First Amendment.  More specifically, even if aspects of the film did reflect actual elements of the plaintiff’s life, the filmmakers’ “transformative use” of those elements in a fictionalized, creative story barred any lawsuit for misappropriation.  The Honorable Jacqueline Nguyen agreed, and dismissed the Complaint in its entirety. 

The Ninth Circuit agreed as well, holding that because the plaintiff could not show a compelling state interest in preventing the defendants’ speech (as embodied in The Hurt Locker’s central character, Will James), 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 opinion confirmed the breadth of artists’ First Amendment protections, “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.”

As indicated in the opinion linked here, which has been certified for publication, this case and the theories advanced by Mr. Hill, Ms. Joseph and Mr. Gorry provide unprecedented protection for filmmakers from nuisance suits claiming misappropriation of name and likeness and right of publicity, all of which have now been adopted as precedent by the Ninth Circuit.