Serial Productions, This American Life Public Benefit Corporation and journalist Brian Reed must face a lawsuit for allegedly violating a dead man’s likeness in S-Town, the controversial but acclaimed podcast that has been downloaded more than 80 million times. An Alabama judge’s rejection of a dismissal motion on Friday is almost certain to prompt concern among media lawyers.
S-Town became one of the most popular podcasts ever produced after an Alabama man named John B. McLemore emailed the staff of This American Life and told them about a suspected murder in his hometown. Reed exchanged communications with McLemore and then traveled to Alabama to investigate the murder. Reed turned up nothing about the murder. Then, shockingly, McLemore committed suicide.
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The suicide was revealed at the end of the second episode, and the series then went on to explore McLemore’s eccentric life. This included intimate details about his sexuality as well as his mental health issues.
After the series came out, the administrator of McLemore’s estate filed suit alleging violation of Alabama’s right of publicity, which makes it unlawful to use the identity of a person in products, goods, merchandise or services without consent. The lawsuit demanded that Serial Productions disgorge profits, pay compensatory damages and be enjoined from using McLemore’s likeness in the future, including a ban on selling movie rights.
These types of lawsuits have been more frequent over the years, but they are rarely successful in court. If consent is required to use someone’s likeness, that threatens everything from docudramas to journalism. If plaintiffs are lucky, they get the treatment afforded Christopher Porco over a Lifetime film, but more often than not, dismissals come. See, for example, what happened to the war veteran who sued over the Oscar-winning film The Hurt Locker.
The X-factor here was Alabama. Entertainment and media companies don’t often fight cases in that state.
Nevertheless, the defendants trotted out the usual winning arguments with high expectations.
“Because S-Town is both a public interest and an artistic work, the Estate’s claims must fail,” stated Serial Productions and other defendants in a motion to dismiss. “First and foremost, the imposition of liability under the Act in connection with S-Town would violate the First Amendment free speech rights of the Defendants. Imposition of liability also would violate the Act itself. … S-Town, a 2017 Peabody award winning podcast, is specifically exempted under the Act as a public interest documentary work. It is also specifically exempted as an expressive and artistic work. The creation and distribution of S-Town is exactly the type of constitutionally-protected speech the Alabama legislature took great pains to exclude from liability under the Act.”
In a 10-page opinion rejecting the dismissal motion, U.S. District Judge L. Scott Coogler mostly shrugs off the free speech argument. Instead, he looks to the publicity rights law itself and the allegation within the complaint that the defendants used McLemore’s indicia of identity in a “commercial manner to advertise, promote, or endorse the products, goods, and services of various advertisers.”
Many courts have held in other cases that selling advertising doesn’t transform expressive speech into commercial speech, but this judge hasn’t got the memo.
As Coogler’s opinion states, “Taking these allegations as true, the Court cannot conclusively determine that Defendants’ use of McLemore’s indicia of identity is non-actionable as the contents of any and all the alleged advertisements or promotions allegedly using McLemore’s indicia of identity are not before this Court. Although Cargile refers to the S-Town podcast generally in his counts, the Court assumes that Plaintiff’s general reference to the podcast includes both S-Town’s expressive contents and the advertisements that interject at regular intervals throughout each episode as well as any other advertisements or promotion materials related to S- Town. Therefore, Cargile has stated a plausible claim for relief under the Act, and Defendants’ motion to dismiss is due to be denied.”
Additionally, the judge won’t dismiss a claim demanding a constructive trust over profits for S-Town nor will he reject the demands for injunctive relief.
The full ruling is below.
