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Lawsuit Against Netflix Over Use of Man's Photo in The Hatchet Wielding Hitchhiker Can Go Forward
From Judge David Godbey's opinion today in Hazlewood v. Netflix, Inc. (N.D. Tex.):
This case arises from the use of a photograph of Plaintiff Taylor Hazlewood in the film The Hatchet Wielding Hitchhiker ("the Film"), published by Defendant Netflix, Inc. in early 2023. The Film is a true crime documentary about Caleb McGillvary, a hitchhiker who achieved viral media attention after rescuing a woman from an attack but was later convicted of the murder of a man named Joseph Galfy.
The Film includes the use of a photograph of Hazlewood holding a hatchet. Hazlewood alleges that the photograph was taken from his personal Instagram page without his knowledge or permission. Hazlewood also alleges that the photograph is unrelated to McGillvary and is used out of context in the Film…..
Hazlewood has met his burden to make out a plausible claim of defamation…. Hazlewood alleged that Netflix published a film including his image. The image was accompanied by audio and text stating "Is this a guardian angel or a stone-cold killer?" and "You can never trust anyone." Hazlewood alleged that the use of his image in this context paints him in a "sinister and defamatory light" and implies a connection between Hazlewood and McGillvary that does not exist. Hazlewood included in his complaint a sample of messages from individuals expressing concern and confusion over his involvement in the Film and his connection to the incident involving McGillvary. This includes an instance in which a friend's mother believed, based on Hazlewood's appearance in the film, that he was connected to McGillvary or was himself a murderer….
Hazlewood's complaint also alleged that Netflix "exercised no due diligence procedures" regarding the context of the photograph and did not ask his permission to use the photograph. This allegation goes to whether Netflix acted with the requisite degree of fault for a defamation claim. If the plaintiff is a private individual, the degree of fault that must be shown is mere negligence. The allegation that Netflix failed to determine the context and ownership of the photograph before using it is sufficient to establish a plausible claim that Netflix was negligent with regard to the use of the photograph and the truth of the statement associated with it in the film.
Finally, to raise a plausible defamation claim Hazlewood needed to either plead facts adequate to show plausibly that he has suffered damages or that the statement was defamatory per se. Under Texas law, a statement is defamatory per se if it "tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation." A statement is defamatory per se when it is "so obviously harmful that general damages, such as mental anguish and loss of reputation, are presumed." For example, "[a]ccusing someone of a crime, of having a foul or loathsome disease, or of engaging in serious sexual misconduct" constitutes defamation per se. Here, Hazlewood argues that the audio and text used with his photograph is "a clear statement that Hazlewood is a murderer and/or is associated with a murderer." Hazlewood's description of the mood and tone of the scene in which his photograph is used and examples of reactions to his appearance in the film are sufficient to give rise to a plausible claim that the Film accuses him of a crime. Hazlewood has therefore made a plausible defamation per se claim.
Hazlewood has also pleaded specific damages, such as mental anguish and reputational harm. A statement is defamatory per quod when it is not defamatory on its face and requires reference to extrinsic circumstances or innuendo to be understood as defamatory. Defamation per quod requires a pleading of special damages, but like any element these damages need only to be plausible, not proven, at this stage. Hazlewood has made sufficient claims that he has suffered special damages….
The court also allowed Hazlewood's case to go forward on a theory of "intrusion on seclusion," based on Hazlewood's allegation that Netflix had pulled his photo from his private Instagram page, which he claims was not "publicly available." (Note that this is just an allegation, and there's been no finding of fact yet as to this or as to other matters.)
But the court rejected Hazlewood's misappropriation of likeness / right of publicity claim, because Texas law (unlike similar rules in some other states) requires, among other things, "that the defendant appropriated the plaintiff's name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose." "Hazlewood has not adequately pleaded facts for the first element because he has failed to adequately plead facts showing that his likeness has value associated with it."
Hazlewood conceded in his complaint that he is neither a public figure nor a social media influencer. Value in his likeness therefore cannot be presumed. Hazlewood did not plead additional facts showing any specific value such as reputation, prestige, notoriety, or skill associated with his likeness and therefore has not made out a plausible claim of misappropriation. See Cardiovascular Provider Resources Inc. v. Gottlich (Tex. App. — Dallas 2015) (finding that plaintiff failed to make out a misappropriation claim under the restrictive Texas definition because he could not show that the use of his name was intended to derive a benefit from his reputation, prestige, notoriety, or skill). Hazlewood has not pleaded adequate facts to support the element of the claim requiring appropriation of likeness for the value associated with it. Accordingly, the Court dismisses Hazlewood's misappropriation of likeness claim.
