The Oscar winning director, the studio and screenwriter Mark Boal say the First Amendment protects them in use of elements of Jeffrey Sarver’s life in The Hurt Locker. “By any reasonable measure, the film must be considered a ‘transformative’ work of artistic expression that is protected by the First Amendment,” they said in an 87-page brief (read it here) submitted earlier this week to the Ninth Circuit Court of Appeals. The brief goes on to say that there are only “generic similarities” between Sarver and the William James character played by Jeremy Renner in the 2008 film. This case may sound familiar. The former US Army explosive technician Master Sargent had his initial invasion of privacy 2010 suit against Bigelow, Boal and others dismissed in October 2011. At that time, Sarver was ordered to pay $187,000 in lawyers’ fees to Bigelow, Boal, Summit and the Hurt Locker production. The former Master Sgt. appealed that ruling last November. In his own brief (read it here) filed on July 2 against Playboy as well as Bigelow, Boal and others, the veteran claimed that the film’s use of his life was not transformative at all, that it violated his right of publicity and First Amendment rights have to balanced against his own right of privacy. Bigelow, Boal and Summit’s lawyers disagree. “Appellant cannot state a cause of action for false light invasion of privacy because the Film does not portray James in a light that would be highly offensive to a reason person,” said the brief submitted by the defendants earlier this week. The movie and Sarver do have a real history besides these lawsuits. As a writer for Playboy, Boal was embedded with Sarver’s company in Baghdad for two weeks in late 2004. The writer featured both Sarver’s professional and personal life prominently in the subsequent 2005 article. That article became the basis for The Hurt Locker movie. Boal, who won the Academy Award for Best Original Screenplay for The Hurt Locker, worked with Bigelow again on Zero Dark Thirty, her upcoming film on the hunt and killing of Osama Bin Laden. Sarver’s appeal suit also includes allegations of defamation, breach of contract, intentional infliction of emotional distress and fraud. As well, Sarver claims that U.S. District Judge Jacqueline H. Nguyen “certainly lost sight” of the “guideposts when she ruled as a matter of law” that his privacy concerns “lacked minimal merit.’” Sarver is represented by Michael R. Dezsi of the Law Office of Michael R. Dezsi in Detroit as well as Nathan Dooley and Erik Louis Jackson at the LA offices of Cozen O’Connor. Summit Entertainment is represented by David Halberstadter and Rebecca F. Ganz of LA firm Katten Muchin Rosenman. Kathryn Bigelow and Mark Boal are represented by Dale Kinsella and Jeremiah Reynolds of Santa Monica-based Kinsella Weitzman Iser Kump & Aldisert.
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