United States: Southern Discomfort For Public Radio Defendants

Estate of "S-Town" subject sues for right-of-publicity violations

Phenom

You had to be living under a rock to avoid hearing about pop-culture phenomenon Serial, the intricate and often exasperating true crime podcast devised by journalist and public radio producer Sarah Koenig. Serial turned the previously nascent podcast medium into a media staple and spawned countless imitators and followers.

One of the most successful of these was S-Town, a seven-part podcast hosted by Brian Reed and produced by the team that created Serial. S-Town did its parent-pod proud: Since its release in 2017, it has been downloaded almost 80 million times, won a Peabody award and earned fantastic reviews.

But there was always a dark side to S-Town's success.

Spoiler Alert

S-Town – a polite abbreviation of the vulgar epithet for the series' small-town Alabama setting – started as an investigation of a murder. The murder turned out to be nothing but a rumor, but John B. McLemore, an antiquarian horologist, climate-change prophet and garden maze designer who invited Reed to investigate the supposed crime back in 2012, turned out to be a character of Faulknerian dimensions.

McLemore's vivid personality inspired Reed to hang around and keep recording. The result was an arresting documentary that delved into his relationships, family history and the culture of the eponymous town. The podcast also covered McLemore's gruesome demise by his own hand in 2015; he passed on without ever hearing the final cut of S-Town or witnessing its exceptional popularity.

He also missed the revelations the show made about his personal life – revelations that were central to the show's impact.

The Takeaway

While winning praise for its careful observations of McLemore's complex personality and intellect, the show also revealed details about McLemore's life – details that his estate says he did not consent to share in a public forum.

The estate is suing Reed and several of the public radio corporate players behind the show, including Serial Productions, This American Life Public Benefit Corporation and Chicago Public Media. The suit claims that Reed revealed details that McLemore expected would remain private, and that McLemore never consented to share information about his depression, his finances or his sexuality.

Moreover, the estate is charging Reed and his co-defendants with violations of his right of publicity. "McLemore never gave consent to Reed or the other defendants to use his indicia of identity for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise or services," reads the complaint.

The suit's concerns echo the press S-Town received, which praised the show as an artistic success but raised questions about its voyeurism. Now the show may be subject to a newly passed right-of-publicity law in Alabama that protects individuals from exploitation of their identity decades after they pass away. The right to publicity is a state-based right. Many states only rely on common law precedent, but an increasing number of states have codified the right. When doing this, many states have modified what is protected by the right. Companies that report on private individuals (living or dead) or otherwise use a person's persona (such as in merchandise or advertising) should be aware of these state-by-state differences.

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