IP Law Daily, PUBLICITY RIGHTS—N.D. Cal.: Case dismissed over photograph appearing in Netflix crime drama, (Oct 31, 2023)

By Brian Craig, J.D.

The photograph is functionally related to the public interest because it helps tell the story and advances the show’s themes.

In a right of publicity case involving a photograph appearing in the Polish television crime drama Mire ’97 streaming on Netflix, the federal district court in San Jose, California has dismissed the claims. In granting dismissal in favor of Netflix, Inc., the court concluded that the photograph of a father and daughter, who agreed to be photographed at a photoshoot, implicates an issue of public interest and is functionally related to the public interest because it helps tell the story and advances the show’s themes. The court dismissed both the misappropriation of likeness and the negligent infliction of emotional distress claims under California’s anti-SLAPP statute because the claims arise directly from Netflix’s exercise of its constitutional right of free speech in connection with a public issue (Woloszynska v. Netflix, Inc., October 30, 2023, Freeman, B.).

A Polish father and his eight-year-old daughter, who are aspiring actors, attended a photo shoot and received compensation from a casting agency. A photograph from the photoshoot subsequently appeared three times in the second season of the Polish television show Mire ’97, a fictional crime drama available for streaming on Netflix. When the father learned about the photograph used to depict violent and sexual characters, the father claimed that the depiction of the photograph in the show caused him and his daughter severe shock and extreme emotional distress. The father further alleges that he has been mocked and scorned at his workplace due to the show. The Polish father and his wife filed suit against the streaming service alleging misappropriation of likeness and negligent infliction of emotional distress over use of the photograph. Netflix filed a motion to strike the claims, arguing that the claims should be dismissed under California’s anti-SLAPP statute because they arise directly from Netflix’s exercise of its constitutional right of free speech in connection with a public issue.

Public interest. The court concluded that the photograph implicates an issue of public interest and falls under California’s anti-SLAPP statute. California’s anti-SLAPP statute first asks what issue of public interest the speech in question implicates. Second, courts ask what functional relationship exists between the speech and the public conversation about some matter of public interest. Here, the court found that Netflix’s activity implicates an issue of public interest because the show encompasses topics including crime, death, abuse, and grief, that are clearly issues of public interest, and the photograph is a prop for exploring those themes. The activity is functionally related to the issue of public interest because the photograph is a symbolic reminder of the police sergeant’s failures, motivations, and growth. The photograph helps tell the story and advances the show’s themes.

Misappropriation of likeness. The court also concluded that the father and daughter are unlikely to prevail on their misappropriation of likeness claim. The court found the photograph is a small part of a complex and elaborate television production, and the scenes in the show are transformed by music, dialogue, and film editing in the final product. A generic image of a father and daughter has no inherent or intrinsic meaning as one could write a thousand different stories onto the photograph. Thus, the court dismissed the misappropriation of likeness claim.

Negligent infliction of emotional distress. Next, the court dismissed the negligent infliction of emotional distress claim. The court concluded that the complaint fails to allege facts demonstrating that Netflix owes the father and daughter a legal duty. The father and daughter allege they were approached by a casting agency under the guise of taking photographs to be used for a potential, undisclosed film or series, and that they allowed themselves to be photographed but did not provide consent for use of the photographs in the show. The complaint also alleges that the father and daughter believed they would be later informed before any dissemination of the photographs into the public media. The court concluded these allegations are vague and conclusory. The complaint fails to allege facts about how the casting agency worked for Netflix and alleges little more than the plaintiffs’ own “thinking” that they would be notified before the photograph was distributed.

Leave to amend. The court dismissed the misappropriation of likeness claim with prejudice; however, the court dismissed the negligent infliction of emotional distress without prejudice. The court granted leave to amend the complaint for the negligent infliction of emotional distress claim.

Corrected order. The court originally granted Netflix’s motion to strike on October 17, 2023. In the corrected order on October 30, 2023, the court removed a screenshot from an unreleased version of the show. The parties agreed that the inclusion of the screenshot is not necessary to the decision.

The Case is No. 5:23-cv-00636-BLF.

Attorneys: Jakub P. Medrala (Medrala Law Firm Prof. LLC) for Katarzyna Woloszynska. Kelly L. Perigoe (King & Spalding LLP) for Netflix, Inc.

Companies: Netflix, Inc.

Cases: PublicityRights CaliforniaNews