The Hurt Locker – Fact or Fiction?
Guest Post by Karen Abidi
March 29
The multi-Oscar winning movie The Hurt Locker’s credits contain the usual disclaimer, that it is a work of fiction and that any similarity to any person is entirely coincidental. The fictional nature of the film has been called into question by a real life US army bomb disposal expert, Sergeant Jeffrey S. Sarver. He has instigated a multi million-dollar legal action against the filmmakers, alleging that the film’s main character is based on him. His lawyer has said that calling the film a fiction is a fiction in itself.
How close is the resemblance between Sarver and the film’s central character, Will James? They have the same job in the same war. Sarver claims that he coined the phrases “the Hurt Locker” and “war is a drug”. They have similar personal appearance (blond, blue-eyed), and backgrounds (“trailer trash”). Sarver claims they have similar mannerisms (such as a particular way of rolling up their sleeves), and that James resembles him in other ways; they both slept in bed at night wearing underwear and a bomb helmet, have a box of bomb parts underneath their bed, drink alcohol after successful missions and have the record for the most bombs disarmed by a single soldier.
Mark Boal is The Hurt Locker’s screenwriter and he won an Oscar for it. He knew and had access to Sarver. He was embedded in Sarver’s army unit as a reporter, and accompanied him on missions and assignments for a month. He took photographs and video recordings of him. Prior to The Hurt Locker screenplay, he wrote an article for Playboy, called “The Man in the Bomb Suit”, with Sarver as its focus.
Boal has said that The Hurt Locker is fictional and that the main character is based on the stories of the hundreds of soldiers he interviewed during his research. He didn’t want to “buy” Sarver’s story, as he wanted the freedom that creating a fictionalised work gave him. He says that he reshuffled all the information he gleaned about bomb disposal in Iraq in an authentic way to create a dramatic story.
Real life is fodder for fiction. Fiction comes from the mind of its creator, but also from the writer’s experience of the real world. Facts cannot be owned, and there is no legal ownership of the “movie rights” to a person’s life. Journalists can write articles about people without their permission. Biographers can write unauthorised biographies. However, a writer must take care to ensure that a real-life person is not defamed.
Sarver claims that the depiction of The Hurt Locker’s main character as a messed-up, reckless, gung-ho war addict with a morbid fascination with death is defamatory. Defamation is a false statement about a person damaging their reputation. Whilst it seems paradoxical that a made-up story can make a false statement about a person in the real world, fiction can sometimes be legally defamatory. There are, however, difficulties here. Sarver is claiming to be both similar enough to James for Sarver to be identifiable with him, yet different enough that the character is untrue to him and is defamatory. It seems incongruous for Sarver to argue, at the same time, that he and James are alike, but they are not alike.
Is The Hurt Locker legitimate fictional moviemaking, or is it the unconscionable appropriation of a soldier’s life story? Perhaps Boal didn’t fictionalise quite enough, and should have more sufficiently disguised one of the real-life character inspirations for his cinematic screenplay. Or perhaps, whilst Sarver identifies with the main character, so would many other soldiers who may also recognise in themselves some of the character’s traits, use of military parlance, and experiences and responses to war. It seems to be going too far to say, as alleged by Sarver, that The Hurt Locker is the exploitation of a war hero by greedy Hollywood.
Closer to home, an ex-police woman has claimed that the upcoming series of Underbelly has defamed her. Underbelly is, of course, a television dramatisation of the real-life Melbourne gangland wars and blurs fictional storytelling with real-life characters and factual events. She hasn’t yet seen the television series, but is alleging that it is likely to defame her (having regard to the Underbelly book on which the series is based) by inferring that she is corrupt and had a sexual relationship with a nightclub owner whilst a police officer. Last week, she was unsuccessful in a court action to seek to preview the television program prior to its television release, so she will have to wait until the series is aired before instigating any defamation proceedings. She is seeking to appeal this decision.
It will be interesting to follow the progress of these legal claims by real-life people, both locally and in the US, that they are defamed in the on-screen world.
Karen Abidi is a Melbourne intellectual property lawyer, with a particular interest in the law as it relates to the arts and media.
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