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Sarver v. Chartier

United States Court of Appeals for the Ninth Circuit

May 9, 2013, Argued and Submitted; May 9, 2013, Submission Vacated; December 24, 2015, Resubmitted, Pasadena, California; February 17, 2016, Filed

No. 11-56986, No. 12-55429

Opinion

 [*895]  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.

 [*896]  I

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. [**5]  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 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 [**6]  did not consent to such use and that several scenes in the film falsely portray him in a way that has harmed his reputation.

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813 F.3d 891 *; 2016 U.S. App. LEXIS 2664 **; 44 Media L. Rep. 1337; 93 Fed. R. Serv. 3d (Callaghan) 1716

SGT. JEFFREY S. SARVER, Plaintiff-Appellant, v. 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.SGT. JEFFREY S. SARVER, Plaintiff-Appellant, v. 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.; DONALL MCKUSKER; TONY MARK; FIRST LIGHT PRODUCTIONS INC., Defendants-Appellees, and PLAYBOY ENTERPRISES, INC., Defendant.

Prior History:  [**1] Appeal from the United States District Court for the Central District of California. D.C. No. 2:10-cv-09034-JHN-JC. Jacqueline H. Nguyen, District Judge, Presiding.

Sarver v. Hurt Locker LLC, 2011 U.S. Dist. LEXIS 157503 (C.D. Cal., Oct. 13, 2011)

CORE TERMS

film, anti-SLAPP, domicile, quotation, defamation, celebrity's, broadcast, portrayal, emotional, stationed, distress, lawsuits, persona, misappropriation, choice-of-law, prevail, movie

Civil Procedure, Preliminary Considerations, Jurisdiction, Diversity Jurisdiction, Federal & State Interrelationships, Choice of Law, Forum & Place, Governmental Interests, Torts, Procedural Matters, Conflict of Law, Significant Relationships, Intentional Torts, Defamation, Procedural Matters, Place of Injury, Responses, Defenses, Demurrers & Objections, Motions to Strike, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Strategic Lawsuits Against Public Participation, Pleading & Practice, Pleadings, Complaints, Service of Process, Time Limitations, Discovery & Disclosure, Discovery, Judgments, Summary Judgment, Motions for Summary Judgment, Bill of Rights, Freedom to Petition, Complaints, Requirements for Complaint, Invasion of Privacy, Appropriation, Elements, Case or Controversy, Constitutionality of Legislation, Inferences & Presumptions, Governments, Courts, Common Law, Scope, The Judiciary, Constitutionality of Legislation, Appropriation, Freedom of Speech, Commercial Speech, Advertising, Intentional Infliction of Emotional Distress