When Can You Sue a Filmmaker for Defamation?

A real-life soldier says The Hurt Locker is based on his life and makes him look bad, too.

The Hurt Locker

A real-life soldier, Master Sgt. Jeffrey Sarver, has filed a lawsuit against the Oscar-nominated makers of The Hurt Locker for defaming his character by basing their film on his life. Sarver says he shares many traits with the hero of the film but claims that the movie version besmirches his reputation by carrying on in a reckless and disloyal manner. How much must he have in common with the guy in the movie in order to bring a defamation suit?

Just enough to be identified by any reasonable person who knows him. There haven’t been too many cases quite like Sarver’s, in part because publishing houses and Hollywood studios usually pay people for their life stories to avoid precisely this sort of case. When the true identify of a fictional character does become an issue, however, most courts hew to the unhelpful “reasonable viewer” test.

The producers of The Hurt Locker argue that the film’s main character is a composite of many soldiers whom the screenwriter encountered while embedded in Iraq. Even if that’s true, they’ll still be liable so long as the guy in the movie has several traits that can be uniquely identified with Sarver. In 1979, the California Supreme Court heard a case about the book Touching, which portrayed a psychiatrist who held “nude marathon” group sessions to help patients lose their inhibitions. A real-life nude therapist accused the book’s author of portraying him as foul-mouthed and generally unprofessional, and won a defamation claim against her. There were lots of differences between the plaintiff and the character in the book, but the fact of the nude therapy was deemed a distinguishing characteristic in itself. Sarver’s attorneys say their client coined several of the phrases used in the movie, including its title. They also point to Sarver’s habit of rolling up his sleeves just like the guy on the screen. Even if the character is a composite, they claim, these traits will always identify him as Sarver.

Most of the other cases on this issue deal with the right of publicity—the misappropriation of a person’s likeness for commercial purposes. (Sarver has made this claim as well.) In 1992, Vanna White won a case against Samsung over an advertisement featuring a blond-wigged robot standing on a game-show set. The court decided that an ordinary viewer would associate blond hair, jewels, and an evening gown with White as long as they appeared in the context of a game show. Bette Midler won a 1989 case involving the use of a sound-alike in a Ford commercial.

What about that disclaimer at the end of nearly every movie, noting that all characters are fictional and that “any resemblance to real persons, living or dead, is purely coincidental“? It has no legal significance. An English justice uttered some form of the phrase in a 1934 case against MGM studios, whose film Rasputin and the Empress falsely suggested real-life Princess Irina Alexandrovna Youssoupoff had been seduced by Rasputin. Studios keep using the disclaimer, but no case has ever turned on its presence or absence. What’s more, the disclaimer is often patently untrue. It appears at the end of Raging Bull, a film about real-life fighter Jake LaMotta, and in Platoon, even though director Oliver Stone acknowledges it was based on his experience in Vietnam.

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Explainer Eric E. Johnson of the University of North Dakota School of Law and Michael Landau of Georgia State University College of Law.

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