The estate of John B. McLemore, the subject of S-Town, is suing the creators of the Peabody-award winning podcast, arguing that they “exploited details of his private life for financial gain,” the Associated Press reports.
The suit was filed in Bibb County, Alabama by the executor of McLemore’s estate, Craig Cargile. It names Serial Productions, This American Life, Chicago Public Media, and host/producer Brian Reed as defendants, among others. Cargile’s attorney told Al.com that the suit “stems from the state’s Right of Publicity Act, which prevents use of voice, name or other characteristics of a person without their permission.”
In an email response to the AP, S-Town executive producer Julie Snyder noted that she could not comment on the suit but says it lacked “merit.”
You can read the suit, which is a public document, over here.
For more context on the strength of the lawsuit, I called up a technical expert: Lindsay W. Bowen, a partner with Cowan, DeBates, Abrahams & Sheppard LLP (CDAS). Time for another installment of “Ask A Podcast Lawyer.”
Ask a Podcast Lawyer: S-Town Lawsuit. Here’s Bowen (and do note that aspects of Bowen’s response refers to specific portions of the suit that isn’t mentioned in the previous write-up, so do skim it if you’re digging through the weeds):
DISCLAIMER: This is not legal advice, and there is no attorney-client relationship between Hot Pod readers and CDAS or any of its lawyers. Any individual matter depends on its unique set of facts and you should consult an attorney about yours. Also, the links are for illustration only, and we don’t endorse the sites or their content. Finally, this is written in an attempt to honor the house style of Hot Pod, which has got a little kick to its voice. Don’t judge me — I’m usually appropriately boring.
To quote audio dramatist Douglas Adams, “don’t panic,” at least not about this suit. Right of publicity (“ROP”) laws are state statutes that protect the unauthorized commercial use of someone’s name, voice, likeness, or other recognizable aspects of their persona. Most of these laws are aimed at preventing uses that looks like commercial endorsement. If they tread much beyond that, the laws risk being held invalid under the First Amendment.
Because these are state, not federal, laws, they vary depending on the subject’s state — not the podcaster’s. Alabama’s ROP law is relatively new, and was passed under the radar of some of the public interest groups that fight for and against these things, so it’s not been the subject of extensive commentary or court decisions. However, the text of the statute is clear. In Alabama, like in about half the states, the right can be postmortem, passed down to heirs of a dead person. But there are very clear free-speech based exceptions for “public interest works” like documentaries and “artistic works” like films, and for the promotion of such works.
I don’t want to get too far in the weeds on this particular case, but it appears that the defendants (even the 1-100 “John Doe” defendants the Estate has named) have a very strong defense based on this alone, for both the documentary podcast and for any narrative movie based on it. There is also a common-law claim based on the “private information” that John B was possibly bi, the inclusion of which was discussed at length in the New Yorker review of S-Town last year. Leaving aside Tyler’s colorful assertion that this might not have been such private information, since such claims are generally not available posthumously, this is not a strong point for the plaintiff, either.
No defendant has filed an answer in this case, but I expect them to come out swinging.