The estate of the man who is the subject of one of the most popular and record breaking podcasts in history is suing the podcast’s creators, alleging that they exploited the details of his private life for personal gain.

S-Town, which has chronicled the life (and death) of an eccentric and mysterious Alabama resident named John B. McLemore, has been downloaded almost 40 million times since it was released in March 2017. It has since won a Peabody award and it going to be adapted into a movie.

The podcast is hosted by the producer of This American Life, another massive podcast hit and was produced by the creative team behind Serial, a third immensely popular podcast.

Since its release, S-town has raised many questions about privacy and consent. McLemore died in 2015, midway through the podcast’s production and two years before it was released. He was never aware of how many people would listen to his story via the podcast. Now, that story is at the center of a lawsuit.

Who is John B. McLemore?

McLemore, a restorer of antique clocks in small-town Woodstock, Alabama, sent an email to the producer of This American Life several years ago asking for help solving what he believed had been a murder and subsequent cover-up. The producer was intrigued and travelled to Woodstock to investigate, starting to collect material for a new podcast.

When the investigation revealed the murder to be a rumour only, the producer (who eventually became the host of S-town) ended up focused mostly on McLemore taking the producer’s around the town he called “Shit-Town” (hence the title of the series).

After McLemore committed suicide in 2015, the host returned to Woodstock to turn the material previously recorded into an in-depth exploration of the most intimate details McLemore shared and on an “unearthing of the mysteries of one man’s life”.

Among the private details discussed in the lawsuit are the fact that McLemore had multiple intimate relationships with men, and that he engaged in a body-modification ritual involmaving tattoos and piercings.

On such matters, the suit notes that:

None of these ‘mysteries’ are of legitimate public concern, nor were these matters that McLemore contacted (Brian) Reed to investigate or write about. Instead, they generally involved the private matters of McLemore’s life…

The podcast never made clear whether McLemore had provided consent for his full story to be told. Issues of invasion of privacy and journalistic ethics were fiercely debated when the podcast first launched.  Major publications called the podcast “morally indefensible” and “well-intentioned voyeurism”.

Details of the Lawsuit

The executor of McLemore’s estate filed the lawsuit in an Alabama court in mid-July of this year. The suit seeks compensatory and punitive damages (including proceeds from the podcast) as well as an injunction preventing anyone associated with the podcast from using McLemore’s likeness in the future.

The estate, including McLemore’s mother, is claiming that S-town’s creators did not have permission to use his identity to explore his personal life, including details about his mental state, sexual orientation, and other private aspects of his life. It states:

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…[a]dditionally, McLemore never gave consent to Reed or the other defendants to broadcast the intimate details of his sexual orientation, and experiences, depressed thoughts, suicidal tendencies, financial affairs, physical and mental health issues and his interpersonal relationships with friends, family members and sexual partners.

Lawyers for the estate note that they are bringing their claims under the Alabama Right of Publicity Act which gives McLemore’s estate publicity rights for up to 55 years after his death. These publicity rights can be inherited.

On this basis that the estate believes that it is entitled to the money that is generated by S-town.

What is Right of Publicity?

Approximately 30 states have “right of publicity” laws, with Alabama’s having been introduced in 2015. These laws seek to prohibit the use of someone’s “persona” for “commercial purposes” without that person’s consent.

There is some disagreement among legal experts as to whether the Alabama Right of Publicity Act (the Act) applies in this case. In an email to the New York Times, one of the lawyers for the estate notes that the Act “appears to be directly applicable” to the situation.

However, other experts disagree, noting that the act, much like similar laws in other jurisdictions, includes an exemption for “artistic uses of a person’s likeness” including “audiovisual work, motion picture, film, television program, radio program or the like”. Arguably, a podcast would fit into this enumerated list of exceptions.

Whether or not such artistic uses can be considered commercial can get tricky- something like a podcast or a motion picture can make money and is therefore perhaps commercial given the normal use of that term. However, legally, commercial does not necessarily mean for profit. Rather, the Act defines “commercial” as being for advertising or trade purposes (i.e. something like a beer commercial). While something like a podcast might make money, it does not necessarily mean that the creators or host of that podcast can be sued under the Act for profiting off the image or likeness of someone featured in that podcast.

It remains to be seen how the courts will treat this case.

In a statement to Associated Press, one of the podcast’s executive producers claimed that the lawsuit “lacks merit” and that “S-town is produced consistent with the highest journalistic standards and we intend to defend against this lawsuit aggressively”.

We will continue to follow developments in this matter and will blog about updates as they become available.

In the meantime, if you have questions about estate planning or about your will, contact Mark Feigenbaum. Mark can help you avoid the biggest legal and financial risks that can arise in planning your financial future and can insure your interests and those of your loved ones are protected going forward. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792.