Federal district court judge Jacqueline Nguyen finalized her ruling dismissing the claims by Sgt. Jeffrey Sarver that he was the person depicted in the film. The original claim included claims for violation of publicity rights, defamation, false light and intentional infliction of emotional distress, but most of those claims had been dismissed earlier in the proceedings.
For filmmakers, the case is particularly important because the California district court awarded the defendants attorneys’ fees in the case.
As a legal matter, narrative films can certainly be held accountable for defamation if the film is “of or concerning” the plaintiff. A similar issue arose at the end of the movie, American Gangster, the Ridley Scott film starring Denzel Washington. At the end of the film a tag line read “collaboration [with law enforcement] led to the conviction of three quarters of New York City’s Drug Enforcement Agency.” In reality, according the defamation suit opinion, Lucas’ cooperation, “did not lead to the conviction of a single agent of the New York City office of the USDEA or any member of the NYPD, or any other law enforcement official in New York or elsewhere.” Unlike many of the defamation lawsuits, the filmmakers were clearly caught making an outright fabrication. In this case, however, the suit was dismissed because the defamation was of a large group – 400 current and former DEA agents. No particular agent was identified.
A similar threshold issue occurs in with Sgt. Sarver’s claim. Although Sarver claimed screenwriter Mark Boal based the film exclusively on him, Boal denied the allegation. “The Hurt Locker was inspired by many soldiers I met and interviewed during my time reporting in Iraq and elsewhere,” Boal wrote.
Judge Nguyen noted “[d]efendants unquestionably contributed significant distinctive and expressive content to the character of Will James.” If the character is a composite of many individuals and further transformed though the writing, directing and acting process, it is hard to show that the threshold question of “of or concerning” can be met.
There must certainly be a balance between the rights of an individual to be free of defamatory attacks and the rights of journalists and artists to express themselves. But the court here struck the right balance.