Sgt. Sarver in a world of hurt after losing battle (and war) in Hurt Locker lawsuit

Posted by | December 13, 2011 | Disputes, General | One Comment

Sgt. Jeffrey Sarver probably feels a lot like the guy in this movie poster now that a federal court judge has stricken his complaint and ordered him to pay his opponent’s attorneys’ fees.  Having to pay an opponent’s legal fees must feel like being hit shrapnel — each dollar paid inflicts another small wound.  For Sgt. Sarver, that’s 187,000 wounds.  Ouch!  What did Sgt. Sarver do to deserve such treatment?  Well, first he sued:

[framed_box] THE HURT LOCKER, LLC, MARK BOAL, KATHRYN BIGELOW, GREG SHAPIRO, NICOLAS CHARTIER, TONY MARK, DONALL McCUSKER, SUMMIT ENTERTAINMENT, LLC, VOLTAGE PICTURES, LLC, GROSVENOR PARK MEDIA, LP, FIRST LIGHT PRODUCTIONS, INC., KINGSGATE FILMS, INC., and PLAYBOY ENTERPRISES, INC. [/framed_box]

for violations of his right of publicity, as well as breach of contractfalse light, defamation, intentional infliction of emotional distress, fraud, and fraudulent misrepresentation.  Phew!  I’m wiped out from just from all the linking!

Sgt. Sarver was an experienced explosive ordnance disposal (EOD) technician and a Staff Sergeant of the US Army’s 788 Ordnance Company. Defendant Boal was an embedded journalist with Sgt. Sarver’s unit in December, 2004.  Boal was a reporter for Playboy Magazine (because men studying naked women clearly do so to get themselves — shall I say, “in the mood” for learning about of the atrocities of war).

Sarver’s complaint alleges that Defendant Boal became acquainted with him personally, even visiting Sgt. Sarver and other service members in Wisconsin once they returned home in 2005.  In September of 2005, Playboy ran an 11 page article (attached to the complaint, cartoons & all) that focused on Boal’s experience with Sgt. Sarver in Iraq.  Reader’s Digest republished the article in 2006.  Boal then wrote the film, The Hurt Locker, which was released in New York and Los Angeles on June 26, 2009, followed by a nationwide release on July 24, 2009 and a DVD release on January 12, 2010.  Sarver claims The Hurt Locker film “clings to the plaintiff’s likeness and personal circumstances throughout the movie.”  The defendants didn’t think so, and more importantly, the judge didn’t think so.

The court ordered Sarver’s complaint stricken in its entirety this past October.  Defendants claimed that Sgt. Sarver’s lawsuit violated California’s Anti-SLAPP statute, which prevents suits brought primarily to discourage speech about issues of public significance or public participation in government proceedings.  The judge took the defendant’s side finding:

[framed_box] To bring an anti-SLAPP motion, Defendants must show that the challenged activity is both in furtherance of free speech and in connection to a public issue.  Defendants have easily met the first prong of showing that they were engaged in protected speech, since The Hurt Locker was a commercial film.  Defendants have also met their burden of demonstrating the second prong that their conduct is connected to a public issue. [/framed_box]

The court then concluded that Sgt. Sarver could not prove his case, striking down each of his seven claims, one-by-one.  But the real bomb dropped last week when the judge granted each motion for legal fees (here, here and here), ordering Sarver to pay $187,000.00 in fees and costs for his opponents attorneys!  I’ve said it before, but it seems worth repeating, lawsuits against movie studios rarely succeed.

The moral of the story?  Legal strategy should include a risk-benefit analysis.  Sgt. Sarver was good at calculating the risks of explosives, but I wonder if he really understood the risk of being responsible for the other side’s legal fees?

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.

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