Woloszynska v. Netflix, Inc.

Background

The plaintiffs are Katarzyna Woloszyńska, Piotr Woloszyński, and Maja Woloszyńska, who was eight years old when the relevant events occurred. Piotr and Maja are aspiring actors who participated in a photoshoot after a casting agency told Katarzyna that it was for a show called “Elza from the 90’s.” The plaintiffs were paid 310 Polish złoty.

A photograph from the photoshoot later appeared three times in the second season of the Polish crime drama Mire ’97, which was available for streaming on Netflix. In the show, a police sergeant repeatedly reflects on the photograph, which depicts a father and daughter, as part of a storyline involving the rape and murder of a daughter, the father’s guilty plea and suicide, and the sergeant’s professional and personal development.

The plaintiffs alleged that they did not consent to this use of the photograph. They said they believed they would be informed before any images were publicly distributed. After the show premiered, people contacted them about what they viewed as a serious mischaracterization. The plaintiffs alleged that viewing the episodes caused severe shock and emotional distress, that Piotr was mocked at work, and that Katarzyna became worried about her children’s security.

The amended complaint contained two remaining claims: Claim One for misappropriation of likeness and Claim Four for negligent infliction of emotional distress. Defendants moved to strike both claims under California’s anti-SLAPP statute, California Code of Civil Procedure section 425.16, and alternatively moved to dismiss them under Federal Rule of Civil Procedure 12(b)(6).

Anti-SLAPP Standard

An anti-SLAPP motion is a procedure for seeking early dismissal of claims arising from activity protected by the constitutional rights to free speech or petition. The court applies a two-step test. First, the defendant must show that the challenged claim arises from protected activity. If so, the plaintiff must show that the claim has at least minimal merit.

The court held that the defendants’ use of the photograph was protected activity. The show addressed public-interest themes, including crime, death, abuse, and grief, and the photograph functioned as a prop in exploring those themes. The court also found a sufficient functional relationship between the photograph and those themes because the photograph was a symbolic reminder of the police sergeant’s failures, motivations, and growth, and helped advance the show’s story.

Misappropriation of Likeness

The plaintiffs alleged that defendants used their likenesses without consent for defendants’ advantage, causing injury. The parties presented competing expert opinions about whether the plaintiffs consented under Polish law. Defendants’ expert opined that payment for posing, without an explicit reservation, could substitute for express permission to use the photograph. Plaintiffs’ expert opined that Polish law did not permit parents to consent to use of a child’s image in a sexual context involving pedophilia or rape. The court treated this as a factual dispute between experts that could not be resolved at that stage.

The court nevertheless concluded that the claim lacked the required legal sufficiency because the use of the photograph was protected speech. The court applied the First Amendment protection for expressive works, including fictional television programs. It held that the photograph was a small part of a complex television production and that the scenes were transformed by the show’s music, dialogue, and editing. The photograph was not the “sum and substance” of the show, and the show’s value did not derive primarily from the plaintiffs’ fame or likeness. The court therefore granted defendants’ special motion to strike Claim One.

Negligent Infliction of Emotional Distress

Under California law, a negligent-infliction-of-emotional-distress claim requires duty, breach, causation, and damages. The court focused on duty, explaining that emotional distress generally must result from a breach of some other legal duty unless the defendant assumed a duty directed at the plaintiff’s emotional condition.

The court found that the plaintiffs had not alleged facts showing that defendants owed them a legal duty not to use the photograph. Their allegations that a casting agency worked for defendants, that the plaintiffs were misled, and that they expected to be notified before publication were vague and conclusory. The complaint did not adequately explain the casting agency’s relationship with defendants, how defendants communicated with the plaintiffs, or what role defendants played in deciding to use the photograph.

The court declined to follow a prior decision that the plaintiffs cited for the proposition that a defendant always has a duty to obtain valid consent before using a photograph commercially. It concluded that the plaintiffs had not adequately alleged a duty and therefore granted defendants’ special motion to strike Claim Four. Because no duty was adequately alleged, the court did not address whether defendants breached one.

Disposition

Judge Beth Labson Freeman ordered the following:

- Defendants’ special motion to strike Claim One for misappropriation of likeness was granted. Claim One was dismissed with prejudice because amendment would be futile in light of the court’s conclusion that the show’s use of the photograph was protected speech. - Defendants’ special motion to strike Claim Four for negligent infliction of emotional distress was granted. Claim Four was dismissed without prejudice because the plaintiffs might be able to correct the pleading by alleging facts showing that defendants owed them a duty. - The plaintiffs were allowed to file an amended complaint only as to Claim Four by November 7, 2023. No additional claims or parties could be added without the court’s permission.