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From Judge David Godby’s opinion today in Hazelwood v. Netflix, Inc. (N.D. Tex.):

This case arises from the use of Plaintiff Taylor Hazlewood’s image in the film The ax used by the traveler (“The Movie”), published by Defendant Netflix, Inc. Set in early 2023. The film is a true crime documentary about Caleb MacGilvary, a hitchhiker who gained viral media attention after saving a woman from an attack but was later convicted of murder. To a man named Joseph Galvey.

The film includes the use of an image of Hazlewood holding an axe. Hazlewood claims the photo was taken from his personal Instagram page without his knowledge or permission. Hazlewood also claims that the photo has nothing to do with McGillvary and was used out of context in the film…..

Hazlewood has shouldered his burden to make a plausible claim of defamation…. Hazlewood claimed that Netflix published a movie that included his image. The image was accompanied by audio and text saying, “Is this a guardian angel or a cold killer?” And “You can never trust anyone.” Hazlewood claimed that the use of his image in this context paints him in a “vicious and defamatory light” and implies a relationship between Hazlewood and McGillvary that does not exist. Hazlewood included in his complaint a sample of letters from individuals expressing concern and confusion about his involvement in the film and its connection to the incident involving McGillivary. This includes an example in which a friend’s mother believed, based on Hazlewood’s appearance in the film, that he was related to McGillvary or that he was a murderer himself….

Hazlewood’s complaint also alleged that Netflix “did not exercise any due diligence” regarding the context of the photo and did not seek his permission to use the photo. This claim relates to whether Netflix acted with the requisite degree of wrongdoing in the defamation claim. If the plaintiff is a private individual, the degree of fault that must be proven is mere negligence. The allegation that Netflix failed to establish the context and ownership of the image prior to its use is sufficient to establish a plausible claim that Netflix was negligent with respect to the use of the image and the truth of the associated statement in the film.

Finally, to bring a plausible defamation claim, Hazlewood either had to plead sufficient facts to prove that he had reasonably suffered damages or that the statement was per se defamatory. Under Texas law, a statement is defamatory per se if it “tends to injure the reputation of a living person and thereby expose him to public hatred, contempt, ridicule, pecuniary injury, or to call into question the honesty, integrity, virtue, or reputation of any person.” A statement is defamatory to the extent The same when it is “so clearly harmful that general harms, such as mental anguish and loss of reputation, are presumed to occur.” For example, “[a]Accusing someone of committing a crime, having a loathsome or repulsive disease, or engaging in serious sexual misconduct “constitutes defamation per se.” Here, Hazlewood says that the audio and text used in his image are “a clear statement that Hazlewood is a murderer.” and/or associated with a murderer.” Hazlewood’s description of the mood and tone of the scene in which his image was used and examples of reactions to his appearance in the film are sufficient to give rise to a plausible allegation that the film accuses him of a crime. Hazlewood therefore makes a plausible defamation claim in itself.

Hazlewood also pleaded for specific damages, such as mental anguish and damage to reputation. A statement is defamatory per se when it is not defamatory on its face and requires reference to external circumstances or insinuation in order for it to be understood as defamation. Defamation in each case requires a claim for special damages, but like any element, these damages must only be reasonable, and unproven, at this stage. Hazlewood has made sufficient claims that he has suffered special damages….

The court also allowed Hazlewood’s case to proceed on the “intrusion of seclusion” theory, based on Hazlewood’s claim that Netflix pulled his photo from his private Instagram page, which he claims was not “publicly available.” (Note that this is just an allegation, no fact has been found yet regarding this or other matters.)

But the court rejected Hazelwood’s misappropriation of the right of publicity, because Texas law (unlike similar rules in some other states) requires, among other things, that “the defendant appropriate the plaintiff’s name or likeness for the value attached thereto, and not incidentally or for the purpose of news”. “Hazelwood did not adequately plead the facts as to the first element because he failed to adequately plead the facts showing that his likeness had value attached to it.”

Hazelwood admitted in his complaint that he is neither a public figure nor a social media influencer. Therefore, the value cannot be assumed in its likeness. Hazlewood did not plead additional facts showing any specific value such as reputation, prestige, notoriety or skill attached to his likeness and therefore did not make a plausible allegation of misappropriation. See Cardiovascular Providers Resources Inc. v. Gottlich (Tex. App. – Dallas 2015) (finding that plaintiff failed to state an embezzlement claim under the restrictive Texas definition because he could not prove that the use of his name was intended to derive a benefit from his reputation, prestige, notoriety, or skill). Hazlewood has not pleaded sufficient facts to support the element of the claim requiring an assignment of similarity to the value attached to it. Accordingly, the court rejects Hazelwood’s claim of misappropriation of similarity.

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