Lexis Nexis - Case Brief

Not a Lexis+ subscriber? Try it out for free.

Law School Case Brief

Sarver v. Chartier - 813 F.3d 891 (9th Cir. 2016)


A court evaluates anti-strategic lawsuit against public participation (anti-SLAPP) motions in two steps. The defendant must first make a prima facie showing that the plaintiff's suit arises from an act by the defendant made in connection with a public issue in furtherance of the defendant's right to free speech under the United States or California Constitution. Second, if the defendant has made such showing, the court evaluates whether the plaintiff has established a reasonable probability that the plaintiff will prevail on his or her claim. Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.


Sergeant Jeffrey Sarver served as one of Explosive Ordnance Disposal (EOD) technicians in Iraq. During that time, Mark Boal, a journalist, followed Sarver for a significant amount of time, and subsequently wrote an article focused on Sarver’s life and experiences in Iraq. Boal later wrote the screenplay for the film that became The Hurt Locker, which was released in June 2009 while Sarver was stationed in New Jersey. Sarver contended that Will James, the movie’s main character, was based on his life and experiences, pointing to characteristics of James and events in the movie that allegedly mirror his life. Sarver asserted that he did not consent to such use and that several scenes in the film falsely portray him in a way that has harmed his reputation. In March 2010, Plaintifff Sarver filed suit in the District of New Jersey against Defendants Mark Boal, Kathryn Bigelow, the film’s director, Nicholas Chartier, its producer, and numerous corporate defendants, alleging causes of action for misappropriation of his likeness and right of publicity, false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and negligent misrepresentation.

Defendants moved to dismiss Sarver’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3), or, alternately, to transfer venue to the Central District of California pursuant to 28 U.S.C. § 1404(a). In response, the District of New Jersey transferred the case to the Central District of California. Moreover, some of the corporate defendants filed a motion to strike Sarver’s complaint under Cal. Civ. Proc. Code § 425.16, California's "anti-SLAPP" statute, which was "enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation." The district court, striking Sarver’s complaint in its entirety, concluded that California's Anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute applied because the defendants were engaged in the exercise of free speech in connection with a public issue, and also even assuming that Sarver and Will James share 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. The district court concluded that the film's use of Sarver's identity was transformative and dismissed all of Sarver's claims. Sarver sought appellate review.


  1. Should California’s Anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute be used to analyze the case?
  2. Should the complaint alleging several causes of action, including misappropriation of his likeness and right of publicity, defamation, fraud, and others, be dismissed?


1) Yes. 2) Yes.


The Court of Appeals for the Ninth Circuit affirmed the district court's dismissal under Cal. Civ. Proc. Code § 425.16, California's anti-SLAPP statute. The Court, applying the choice-of-law rules of New jersey, concluded that California contacts predominated, and that California had the most significant relationship to the litigation. Thus, the Court applied California’s anti-SLAPP law. Turning to the merits of the defendants’ anti-SLAPP motions, the Court applied the statute's two-step analysis. First, the panel held that The Hurt Locker film and the narrative of its central character Will James spoke directly to issues of a public nature. Second, the panel held that The Hurt Locker was speech that was fully protected by the First Amendment, which safeguarded the storytellers and artists who took the raw materials of life and transform them into art, such as movies. The Court held that because Sarver could not show a compelling state interest in preventing the defendants' speech, applying California's right of publicity law - which prohibited a person from using a celebrity's name or likeness without consent - in this case would violated the First Amendment. The Court concluded that because Sarver could not state a right of publicity claim, the district court did not err in granting the defendants' anti-SLAPP motion regarding the claim.

Access the full text case Not a Lexis+ subscriber? Try it out for free.
Be Sure You're Prepared for Class