Entertainment Law, Free Speech

The Three Stooges Stole My Life Story

How transformative does your screenplay have to be to use a person's life story without their permission? The Hurt Locker case provides an example.

By  
on

hurt_locker_poster_m_0When my son Jack was six years old, he went to a birthday party for a girl in his class. The girl had a Barbie house and when Jack saw it he said, “With only about 200 changes, that Barbie house could be an army base.”

Jack isn’t a judge, but his transformative skills would qualify him to decide right of publicity cases for the Ninth Circuit. But I’m getting ahead of myself.

Let’s start with introductions. Jack meet Jeff. Jeff meet Jack.

Jeff is retired Staff Sargent Jeffrey Sarver, a former explosive ordinance disposal technician with the U.S. Army. Sargent Saver was the subject of a 2005 Playboy article written by Mark Boal titled, “The Man in the Bomb Suit.” Boal wrote the article after being embedded with Sarver’s bomb disposal team in Iraq. The article chronicles Sarver’s bravery while facing great personal risk. Boal wrote that Sgt. Sarver’s job is “so dangerous that bomb techs are five times more likely to die in Iraq than all other soldiers in the theater.”

That article was the genesis of Boal’s screenplay for the motion picture The Hurt Locker, which was released in 2009 to critical acclaim. Boal won an Academy Award for his screenplay and the motion picture won five Oscars including one for Best Picture.

Here’s the problem: Boal did not seek, nor did he receive, Sgt. Sarver’s permission to use the circumstances of his experiences as a bomb tech in Iraq.

Sarver claims that Boal stole his life story.

Sponsored

Will James, The Hurt Locker’s main character, was played by actor Jeremy Renner. Renner was essentially the same age and height as Sarver. Renner dyed his hair blonde and adopted Sarver’s West Virginia accent and certain personality traits to impersonate Sarver. In the movie, Will James, like Sarver, was a former Army Ranger with a young son living with his ex-wife back home. Most of the EOD (explosive ordinance disposal) missions depicted in the movie are identical to Sarver’s real missions and James, like Sarver, set the record for the most IEDs (improvised explosive devices) disarmed by any single soldier.

What would you expect Boal to say in response to Sarver’s claims? You guessed it, Boal denies that the screenplay was based on Sarver. In fact, he told the LA Times that “William James is a fictional character that is the product of my imagination.”

Sarver felt otherwise. He sued the producers and Boal for a violation of the right of publicity, claiming that the movie improperly used his likeness.

The complaint was dismissed per California’s anti-SLAPP statute (Anti-Strategic Lawsuit Against Public Participation) and was appealed to the Ninth Circuit. The Ninth Circuit released its opinion in February 2016.

Before we get to the decision, it is important to know that 15 years ago, the California Supreme Court decided Comedy III v. Saderup — the Three Stooges case. The Three Stooges (Curly, Moe, and Larry) appeared in more than 100 movies over the span of 30 years. It was slapstick humor at its finest. Think Dumb and Dumber in black and white.

Sponsored

Gary Saderup, an artist specializing in charcoal drawings of celebrities, sketched a portrait of the Stooges, which he replicated on t-shirts and sold for a profit. Comedy III, the owner of the Stooges’ names, images, and likenesses, sued Saderup for violation of California’s right of publicity statute.

Saderup claimed that his drawings were protected by the First Amendment. The court stated that the issue is whether the work is “transformative.” The court held that “[w]hen a work contains significant transformative elements, it is … especially worthy of First Amendment protection.” The test is “whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.”

Now, back to The Hurt Locker and that pesky First Amendment.

Defendants argued that even if Sarver could establish all of the elements of the right of publicity, allowing the claim to go forward would infringe upon the constitutional right to free speech. The Ninth Circuit agreed. It held that “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 … movies.”

Transformed is the magic word.

Unlike my son Jack’s transformed army base, Sargent Jeffrey Sarver’s life story has been transformed with far fewer than 200 changes. In Stooges speak, Sarver is “a victim of coicumstance!”

Jon Pfeiffer is an entertainment trial attorney practicing in Santa Monica, California. Jon also is an adjunct professor at Pepperdine University in Malibu, California, where he teaches media law. Visit Jon’s website www.pfeifferlaw.com or e-mail him at Pfeiffer@pfeifferlaw.com.

Topics

, , , , , , , , , , , ,