Defusing a tricky situation: “The Hurt Locker” under fire

Shortly before winning six Academy Awards, including Best Picture, the makers of The Hurt Locker found themselves subject to a lawsuit filed in the New Jersey District Court on 3 March 2010.  The lawsuit alleges that the makers of the film essentially stole the life story and persona of Iraq War veteran, Master Sergeant Jeffrey Sarver.  Sarver claims Mark Boal, the movie’s screenwriter, was a journalist in his unit for over thirty days in 2004 and used the material for an article in Playboy magazine, and subsequently in the development of the screenplay for The Hurt Locker.  In particular, the claim alleges a breach of his right to privacy and publicity, fraud, defamation and breach of contract among others.

This case provides a timely opportunity to evaluate how the law protects “personality rights” in both the United States and Australia.

United States

In the United States, both state common law and statute have provided certain protection for personality rights.  In fact, approximately half of the states recognise the Right of Publicity, which aims to prevent the commercial exploitation of someone’s name or likeness.  Not all of these states recognise it as an independent right, but rather as a broader category of the Right of Privacy recognised at common law.  According to the Restatement of the Law for Torts (2nd ed) at 652C, the Right of Publicity is an interest a person has in the exclusive use of their own identity and therefore is a property right in nature.  Liability will arise when someone appropriates and uses a person’s name or likeness for their own benefit, commercial or otherwise.

Australia

In contrast to the United States, there has traditionally been no right of privacy recognised by the common law in Australia.  While the right was briefly toyed with by the Queensland District Court in Grosse v Purvis [2003] QDC 151, the courts have been reluctant to fully embrace a right to privacy ever since.  Certainly, there is no right in one’s name or likeness available in Australia equivalent to the Right of Publicity in the United States.  Instead, complainants are left to rely on claims under s 52 of the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct or, alternatively, a claim based on a breach of confidence.  A well known example is Telmax Pty Ltd v Telstra Corp Ltd (1996) 36 IPR 46, where Kieren Perkins alleged that Telstra was liable for misleading and deceptive conduct by using his image on a newspaper advertisement.  Ultimately, Kieren Perkins was successful and gained a similar remedy to that which he would have received in the United States in circumstances where his name, image and reputation were used without consent.

Lessons?

In this case, Sarver claims the character known as “Will James” is based on him and that many of the key scenes in the film are misrepresentations of aspects of his life.  It remains to be seen whether an argument based on the Right to Publicity would succeed (especially given the broad freedom of speech provision in the First Amendment).

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