As I have written many times before on this blog, and as I know from my own experience, defamation lawsuits against major media outlets are no joke. Defamation law across the United States has been mostly settled for the past generation, and so most newspapers, television stations, publishing houses, and film production companies have editors
First Amendment Law
Jury Awards Law Professors $5 Million Against West Publishing For Defamatory Pocket Part
[UPDATE: Law Librarian Blog and 3 Geeks and a Law Blog both have detailed coverage of the case and what it means for the publishing industry, and Jonathan Turley has background on the Campbell punitive damages case.]
[UPDATE II: As The Legal Intelligencer reported, and as I predicted below, Judge…
Blog Defamation And The Discovery Rule: Do Plaintiffs Have Constructive Knowledge Of The Entire Internet?
As The Legal Intelligencer reported Friday:
Aviation lawyer and seasoned pilot Arthur Alan Wolk knows quite a bit about the stratosphere and the troposphere, but he may have learned something new this week about the blogosphere when a federal judge tossed out his libel suit against the bloggers at Overlawyered.com.
As U.S. District Judge
Can Shirley Sherrod Sue Andrew Breitbart For Defamation?
Talking Points Memo reports the latest on the Shirley Sherrod fiasco:
Shirley Sherrod said this morning on CNN that she would like to “get back at” Andrew Breitbart.
Asked if she would consider a defamation suit against Breitbart, the conservative blogger who posted the edited clip that got her fired, she said, “I really
Why Mark Zuckerberg Won’t Sue For Defamation Over The Facebook Movie
[UPDATE: We’ve learned a bit more about what happened in the real life dispute, as I blogged about here, and the NYTimes has taken a stab at whether Zuckerberg could sue for defamation, concluding the answer is “maybe.”
UPDATE II: Six months after my post, long after The Social Network has…
A Detailed Look At The Hurt Locker Lawsuit
The producers of the Oscar-nominated The Hurt Locker, which Roger Ebert* deemed the second best film of the decade, were just sued by Sgt. Jeffrey Sarver, a former explosive ordinance disposal technician with the 788th Ordinance Company, with whom journalist Mark Boal — the writer of The Hurt Locker — was “embedded” on assignment for Playboy Magazine.
The complaint, filed in the United States District Court for the District of New Jersey (where Sgt. Sarver lived during the relevant times), gives some examples of the similarities:
The title “The Hurt Locker” – Plaintiff originated this term and said it often around colleagues while in Iraq. Defendant BOAL took interest in this phrase and asked Plaintiff what the phrase meant. Because Plaintiff was told Defendant BOAL was collecting information for the sake of documenting a factual report about Army EOD in general, Plaintiff acquiesced with BOAL’s request, which he said often while during his deployment in Iraq;
“War is a Drug” – Another phrase Plaintiff used when talking to Defendant BOAL;
“Will James”, played by Jeremy Renner” – Mr. Renner is essentially the same age and height; to personate Sgt. Sarver, Renner’s hair was dyed blonde, and Renner impersonated Sgt. Sarver’s persona down to the smallest detail, including the replication of Sgt. Sarver’s West Virginia accent, dialect, expressions, mannerisms, personality, and even dress habits (i.e. rolling his sleeves in the exact same manner as Sarver); succinctly stated, Renner acts and behaves just like Plaintiff5 throughout the movie;
Same Military & Family Background – Just like Plaintiff, character “Will James” is a former Army Ranger who has a young son who lives with his ex-wife back home; Renner is also referenced as a “red neck” and “trailer trash”;
Same EOD Missions – Most of the EOD missions depicted in the movie are identical to Plaintiff’s, including the same camps where the EOD team was based (ie Camp Victory), and the same manner in which they were handled – as documented in the Playboy Article;
Renner struggles with personal, family relationships just like, and in the same manner as, Plaintiff;
Renner drinking alcohol after successful missions;
Renner setting the record for the most IEDs disarmed by any single soldier;
As THR, Esq. notes,
According to legal experts on this topic, Sarver will need to overcome First Amendment protections that give broad protections on speech. Just putting someone’s life story up on screen may not be enough.
Sarver’s claims may be stronger if he, himself, had written about his experience in Iraq. Had Sarver written about his war stories, he might have been able to pursue a copyright claim that producers of “Hurt Locker” had violated his expression.
Sarver’s best case may actually be if producers of “Hurt Locker” got things wrong. Potentially, Sarver could claim that “Will James” is just a thinly veiled depiction of him, but that they had put him in false light and defamed him with dishonest treatment about his character. We have seen these types of “libel-in-fiction” claims come up recently.
Hence, the complaint continues:
Though the movie clings to the plaintiff’s likeness and personal circumstances throughout the movie, Plaintiff is also defamed in placed in a false light in several scenes, such as (1) the scene where Plaintiff explains to his young son that he essentially does not love him, and that the only thing plaintiff loves now is “war”. The movie ends by showing Plaintiff back in Iraq, starting another deployment mission; and (2) the portrayal of Plaintiff as a reckless, gung-ho war addict who has a morbid fascination with death which causes him to carelessly risk both his and his colleagues’ lives in the theater of war, simply to feel the thrill of cheating death.
The Complaint alleges seven counts:
- Misappropriation of Name & Likeness
- False Light Invasion of Privacy
- Breach of Contract
- Intentional Infliction of Emotional Distress
- Negligent Misrepresentation
As far as I can tell, Sgt. Sarver will have little trouble meeting most of the elements of misappropriation, with one exception:
In order that there may be liability under the rule stated in this Section, the defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff’s name or likeness. It is not enough that the defendant has adopted for himself a name that is the same as that of the plaintiff, so long as he does not pass himself off as the plaintiff or otherwise seek to obtain for himself the values or benefits of the plaintiff’s name or identity. Unless there is such an appropriation, the defendant is free to call himself by any name he likes, whether there is only one person or a thousand others of the same name. Until the value of the name has in some way been appropriated, there is no tort.
Restatement of the Law, Second, Torts, § 652, cmt c (emphases added); see Jeffries v. Whitney E. Houston Acad. P.T.A., 2009 N.J. Super. Unpub. LEXIS 1895, at *9 (App. Div. Jul. 20, 2009)(“the purpose of an appropriation of likeness claim is to vindicate the property interest the plaintiff has in his or her name or likeness.”). Misappropriation claims typically arise from false endorsements; here, however, Sarver certainly was not represented as directly endorsing the film. The challenge for his lawyers will be arguing that the use of his life story is sufficient “likeness” that it constitutes a de facto endorsement of the story.
False light and defamation are highly similar claims, and often analyzed together. As THR, Esq. said, there’s precedent out there for “libel-in-fiction,” and Sgt. Sarver’s case seems similar to the The Red Hat Club case linked above: taking an already incredible, but nonetheless real, story and scandalizing it some more. It’s a little bit harder for Sgt. Sarver here, though, since it seems that anyone who recognized him from the film would also know the differences between him and the character, and the complaint admits that he already had substantial family troubles and that he broke military regulations, such as drinking after missions. Those issues, however, are typically issues for a jury, not a judge, to decide.
The remaining claims are intriguing, though none are a good fit to the facts. Regarding breach of contract, it doesn’t appear that Sgt. Sarver was an intended third-party beneficiary to Boal’s “embedding” agreement with the U.S. Department of Defense, though he might be an implied third-party beneficiary. Without the contract in hand, it’s hard to say what will happen here. (One of the commentators at THR, Esq., linked to some of the Department of Defense embedding guidelines, which don’t seem to be as strict as the complaint implies.)
The intentional infliction of emotional distress claim will likely go nowhere. The complaint essentially admits there’s no evidence the producers of the film intended to cause Sgt. Sarver harm. See Ortiz v. Ocean County Prosecutor’s Office, 2005 U.S. Dist. LEXIS 29274, at *15–16 (D.N.J. Nov. 22, 2005)(“To sustain such a claim, the conduct at issue must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.”).
Similarly, the fraud and negligent misrepresentations claims will likely be dismissed. Most courts require some degree of explicit economic loss for these claims. McClellan v. Feit, 376 N.J. Super. 305, 313, 870 A.2d 644, 648 (App. Div. 2005)(“Negligent misrepresentation constitutes an incorrect statement, negligently made and justifiably relied on, which results in economic loss.”). It might be morally wrong to trick someone into revealing their personal story, but it’s not legally compensable as fraud or misrepresentation unless they’re also tricked out of some money.
An interesting case to watch. Depending on Sgt. Sarver’s goals / demands, I’d expect a somewhat prompt settlement, though perhaps not until after the inevitable motion to dismiss is decided.…
Hollywood’s Top Lawyer Goes Off The Rails Threatening Blogger With Defamation Retraction Letter
[UPDATE: Welcome, Boing Boing readers! The below post was written before the South Korean edition of W Magazine was spotted out in the wild with Demi Moore’s hip re-attached. As you can imagine, one of the most important parts of a retraction demand is that you get your facts straight.]
Academic Abstention Should Not Be a Blank Check for Arbitrary and Capricious Conduct by Universities
Via Atrios, we have Stanley Fish’s recent NYTimes column, The Rise and Fall of Academic Abstention:
As recently as 1979, legal academics Virginia Nordin and Harry Edwards were able to say that “historically American courts have adhered fairly consistently to the doctrine of academic abstention in order to avoid excessive judicial oversight of