'Hurt Locker' producers drop First Amendment bomb on Iraq War vet

By Eriq Gardner

EXCLUSIVE: Producers of "The Hurt Locker" are firing back against the Iraq War veteran who claimed that his life story was ripped off to create the Academy Award-winning drama.

Master Sgt. Jeffrey S. Sarver filed his case with much fanfare just days before the film won best picture at the Oscars in March. He says the depiction of an Army bomb squad was a thinly veiled account of his own story. 

According to Sarver's complaint, journalist/screenwriter Mark Boal breached an agreement with the U.S. military that restricted the reporting of detailed personal information about service members. Sarver says the information was used in Boal's Playboy article and then the screenplay for "The Hurt Locker," and that the depiction of the character of Will James violated his publicity rights, defamed him and caused emotional stress.

But now the defendants, including Summit Entertainment, Voltage Pictures, Boal, director/producer Kathryn Bigelow and others, have responded to the complaint with a motion to dismiss.

As expected, the defendants cite First Amendment protections on expressive speech. They say that Sarver needs to show, but hasn't, that his likeness or persona was used wholly unrelated to the film.

The defendants knock Sarver's breach of contract claim by saying there was no contractual "privity," or a direct agreement between him and the parties in this case. As far as emotional distress, the defendants attempt to escape this claim based on a lack of specific facts alleged about how the inflection of distress occurred.

The bulk of the defendants' response is devoted to questioning why New Jersey is the proper venue for this dispute. None of the parties currently reside in the state, and the only apparent connection to New Jersey is that Sarver formerly was a resident of Dover, and the film was distributed in the state. The defendants believe that a California district court would be the proper jurisdiction. 

If this case was litigated in California, the defendants would likely file an anti-SLAPP motion to strike the complaint as an abridgment of free speech. That strategy has proven effective for movie producers wishing to dismiss lawsuits based on the content of their films. The defendants could also make a claim for attorneys fees if they win, as well as damages in a countersuit.

It will be interesting to see what kind of standards a judge imposes on Sarver's claim over publicity rights. The defendants believe that the First Amendment confers broad protections on expressive, commercial speech, but recent courts have challenged this assumption. For example, last month, a federal judge in Tennessee rejected a similar argument from the Weinstein Company to dismiss a lawsuit from a soul singer who found an identifiable likeness in the 2008 film, "Soul Men."

The motion to dismiss was filed by local counsel Charles Falletta at Sills Cummis & Gross, with LA's Katten Muchin Rosenman and Eisner Frank & Kahan.