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(By Gordon P. Firemark) In 2012, John McLemore approached Brian Reed, a journalist and producer of This American Life to invite him to visit his hometown of Woodstock, Alabama. McLemore hoped that Reed would help solve a murder and cover up.
But what Reed found in Woodstock wasn’t the story he expected. He eventually concluded that the alleged murder had never occurred, but became interested in McLemore’s personal story, and continued interviewing him. The interviews delved deep into the man’s life, and became a sort of confessional in which McLemore revealed some of his darkest secrets.
Then, in 2015, Mr. McLemore committed suicide, and the “true crime” story of a murder that never happened became the story of human tragedy.
Reed compiled things into a seven-episode series, 2017’s hit podcast S-Town. The series garnered a a Peabody Award, was downloaded more than 80 million times, and has been optioned for a film. But the success of the podcast was not without controversy. A number of journalists criticized it as exploitative of McLemore, especially considering the posthumous release.
Last July, McLemore’s estate became the most vocal critic, filing a lawsuit against Reed and the show’s producers.
The estate alleges that the podcast failed to obtain any written consent from McLemore, and disclosed private information about his sexual orientation, depression, suicidal thoughts, financial woes and relations with family and friends, none of which were among the things Reed had been asked to investigate. Moreover, the suit contends, McLemore had made explicitly clear he did not want these details of his life made public.
Claims for invasion of privacy generally involve personal rights that die with the person in question. But McLemore’s estate is suing under Alabama’s right of publicity law, which gives a person’s the right to control commercial uses of his or her name or likeness. In Alabama, the law creates a property right that passes to a person’s heirs, and that lasts 55 years after death.
The Estate’s lawsuit demands profits, compensatory damages and that the podcast’s makers be enjoined from using McLemore’s likeness in the future, including a ban on exploitation of movie rights.
The podcast’s producers countered with a motion to dismiss the suit on First Amendment grounds. They argued that they (1) had McLemore’s permission; (2) were engaging in constitutionally protected reporting; and (3) did not use McLemore’s name or likeness in any advertising for the Podcast.
But on March 22nd, they were dealt a major blow. U.S. District Judge Scott Coogler denied their motion stating that, because of the podcast’s sponsorships by Squarespace, Blue Apron, and Quicken Loans/Rocket Mortgage, he could not “conclusively determine” whether the podcast’s use of McLemore’s identity was protected under the First Amendment.
As a result, the case will proceed and unless they agree to a settlement, the producers will have to face trial.
The case is being closely followed by Hollywood as well as journalists, since it could have implications for docu-dramas as well as more traditional reporting.
Podcasters, too, should take notice of this case as a cautionary tale. Interview subjects can be fickle, and it’s relatively easy to bring these kinds of claims. Win or lose, fighting lawsuits is a costly business, and few podcasters can really afford to mount a proper defense.
At very least, podcasters should always get their guests’ and subjects’ consent in writing. A signed release would likely have avoided this whole mess for the S-Town producers.
Will McLemore’s estate ultimately win the case? It really could go either way. If there’s an appeal, I believe the court will determine that the use of McLemore’s name was noncommercial, since it only occurred in the storytelling portion of the S-Town podcast and not as part of advertising messages that support the show.
But if the case goes to trial, there’s no telling what a jury might do. The lack of a written release and recordings of McLemore stating that things are “off the record” could be troublesome for the defendants. I wouldn’t be surprised at a verdict in the high six- or even seven-figure range,
Gordon P. Firemark is The Podcast Lawyer™️, and the author of The Podcast, Blog & New Media Producer’s Legal Survival Guide. Reach Gordon by e-mail at gfiremark@firemark.com or by phone at 310-443-4185. Listen to his podcast HERE. Get Gordon’s free podcast guest release form HERE.