The Hatchet-Wielding-Hitchhiking-Murderer-Unsuccessful-Intellectual-Property-Litigant

From McGillvary v. Hartley, decided Tuesday by Judge Ashley Royal (M.D. Ga.):

Pro se Plaintiff Caleb McGillvary is currently serving a 57-year sentence for first-degree murder. In February, 2013, McGillvary rose to internet fame as the "hatchet wielding hitchhiker" after he gave interviews to a local Fresno, California KMPH Fox News TV reporter in which McGillvary described "smash, smash, suh-mash[ing]" Jett Simmons McBride three times over the head with a hatchet after McBride crashed his car into a group of pedestrians and attacked bystanders at the scene ("KMPH Clip"). Fresno authorities concluded that Plaintiff used justifiable force in protection of the bystanders and cleared him of any wrongdoing.

Three months later, after gaining media notoriety for viral news interviews and media appearances, including an interview on Jimmy Kimmel Live!, Plaintiff was arrested for and ultimately convicted of murdering Joseph Galfy, Jr., a New Jersey attorney. Plaintiff's arrest was unrelated to the hatchet incident.

On January 10, 2023, Netflix released a documentary about McGillvary entitled The Hatchet Wielding Hitchhiker that described his background; interviewed those around him during his rise to fame; and detailed his subsequent murder conviction (the "Documentary"). Five days before the Documentary was released, on January 5, 2023, Defendants created and published an episode on their YouTube channel, "The Behavior Panel," wherein they analyzed the KMPH Clip and made statements about Plaintiff based on their assessment of his body language and behavior (the "YouTube Video"). This suit arises out of the comments made in the YouTube Video….

There's a lot more in the opinion, but here's a short excerpt of the legal analysis:

Defamation …

Plaintiff alleges Defendants made 28 "slanderous and libelous statements with reckless disregard for and/or knowledge of their falsity, with actual malice intending the harm that would result therefrom." Defendants' allegedly defamatory statements include telling viewers they will analyze Plaintiff's body language and behavior from the News Clip to determine whether Plaintiff is a "sociopath" or "psychopath"; commenting on Plaintiff's "odd behavior for someone who's killed somebody in the last three hours"; questioning whether Plaintiff has a "personality disorder" and lacks language and relationship skills; questioning the relationship between Plaintiff and McBride, the driver of the car, "be it a drug deal, be it a prostitution situation, whatever was happening there"; commenting that Plaintiff was trying to be a "hero"; calling Plaintiff a "drifter" and a "vigilante"; suggesting because Plaintiff stated in the News Clip he was from "Dogtown," Plaintiff was "kind of suggesting that he's a mutt out of the back streets … a bit of a mongrel from the backstreets"; opining that Plaintiff "probably has done some things. We know he gets convicted of murder later …. I don't think what we're seeing here is the Johnny Appleseed of goodness running around the country beating up bad guys. I think this was opportunistic…. I'm not sure whether this is a true story of being a savior or it was an opportune moment to be violent with somebody, if it indeed happened"; opining Plaintiff has "been in a whole lot more trouble than we're aware of at this point with local authorities"; stating he was accused of "killing a guy he had consensual sex with"; and opining that Plaintiff and McBride got into a fight before McBride ran into the crowd of people. Plaintiff contends Defendants' analysis falsely implies that he is a sociopath or psychopath; he killed someone within three hours before the news interview; he lacks the interpersonal skills, language capacity, and intelligence that would make him a good business partner or leader; he was criminally culpable in his use of force on McBride; he lied about the events and therefore committed perjury at McBride's arraignment; he is "some kind of glory hog who interjected himself into the interviewer's dialogue in an act of self-aggrandizement"; that people did not like him because he was a drifter; he promoted vigilantism; he was a prostitute who engaged in a "prostitution situation" with McBride; that his identity is synonymous with that of a mutt or mongrel from the backstreets; and that he engaged in a pattern of criminal activity before the incident….

Here, the context of Defendants' statements establish that they are rhetorical hyperbole. All reasonable viewers understand Defendants' comments as expressing their beliefs about Plaintiff's actions based on their subjective assessments of his body language actions, not as literal assertions….

Misappropriation of Likeness …

"Georgia recognizes a right of publicity to protect against 'the appropriation of another's name and likeness … without consent and for the financial gain of the appropriator … whether the person whose name and likeness is used is a private citizen, entertainer, or … a public figure who is not a public official.'" …

"In order to navigate between the competing constitutionally protected rights of privacy and publicity and the rights of freedom of speech and of the press, the courts have adopted a 'newsworthiness' exception to right of publicity." "[W]here an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one's legal right of privacy." "[W]here a publisher may be precluded by the right of publicity from publishing one's image for purely financial gain, as in an advertisement, where the publication is newsworthy, the right of publicity gives way to freedom of the press." …

Here, all factors weigh against Plaintiff and establish that he cannot maintain a claim for a violation of his right to publicity as a matter of law. The YouTube Video did not intrude on Plaintiff's private affairs; Plaintiff voluntarily placed himself in the position of public notoriety; and the information is a matter of public record. Defendants analyzed the KMPH news Clip, a matter of public record that Plaintiff acknowledges in his Amended Complaint went viral. There can be "no liability when the defendant merely gives further publicity to information about the plaintiff which is already public." Plaintiff voluntarily placed himself before the public, allowing the news reporter to interview him and later voluntarily appearing on the late-night television show Jimmy Kimmel Live!. Indeed, Plaintiff acknowledges in his Amended Complaint that he is "famous and widely recognized."

Plaintiff contends Defendants used his identity solely to further their own commercial efforts to market their YouTube channel and sell its products. But, having analyzed the Video, it is clear Plaintiff's identity is not being used to sell a product in an advertisement. Defendants do not use Plaintiff's identity on merchandise. And any use of Plaintiff's identity to attract web traffic to Defendants' YouTube channel is merely incidental to the use of Plaintiff's identity. Defendants do not use Plaintiff's identity to endorse or sell their products. The "fact that the publisher or other user seeks or is successful in obtaining a commercial advantage from an otherwise permitted use of another's identity does not render the appropriation actionable." …

[Trademark] …

Even assuming Plaintiff has a trademark ownership in the words "Smash, Smash, SUH-MASH!" and/or the moniker "Kai the Hatchet Wielding Hitchhiker," Plaintiff cannot show consumers were likely to believe that Plaintiff approved, sponsored, was affiliated, or was the origin of the YouTube Video. The YouTube Video is not a copy of Plaintiff's work. Defendants used the public KMPH news Clip to analyze Plaintiff's body language and behavior….

"[L]ikelihood of confusion occurs when a later user uses a trade-name in a manner which is likely to cause confusion among ordinarily prudent purchasers or prospective purchasers as to the source of the product." Plaintiff has not pled nor can he establish that any ordinarily prudent purchaser or prospective purchaser would have any confusion that Plaintiff approved, sponsored, endorsed, was affiliated, or was the source of Defendants' YouTube Video analyzing his body language and behavior….

Copyright …

Plaintiff alleges he created and performed the "dramatic work and spoken words" he used during the KMPH news interview on February 1, 2013. He alleges he registered his copyright to the "dramatic work 'Smash, Smash, SUH-MASH!'" …

[But plaintiff] has no ownership in the KMPH Clip…. "As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection." … Plaintiff was an interview subject of the KMPH news interview. He played no role in fixing the clip into tangible expression; KMPH employees "fixed" McGillvary's performance—recording him using KMPH controlled and operated equipment. Plaintiff consented to the live media interview when speaking with the KMPH Fox News reporter, engaging in a question-and-answer format, wherein he recounted the events on February 1, 2013….

Defendants are represented by Pamela Grimes (Wilson, Elser, Moskowitz, Edelman & Dicker LLP).