Does the Lawsuit Against “S-Town” Have Merit?
“S-Town,” a podcast created and narrated by “This American Life” producer Brian Reed, came out in March of 2017. The show, a miniseries about the life and death of an enigmatic Alabama man named John B. Macklemore, immediately became a hit with listeners and critics. The show is incredibly personal and raw. It delves deeply into the life of John B. and the other residents of the small Alabama town of Woodstock – not-so-affectionately nicknamed “s**t-town” by John B. himself, which is where the show gets its name.
I’ve listened to it twice, loved it both times, and plan on a third listen. There are many podcasts I enjoy, but “S-Town,” for me, transcends to the level of a classic novel that you want to read again and again, and from which you learn something new every time. The show tells a story of incredible emotional range and sweep in only a handful of episodes. It veers into philosophy and the nature of time, pessimism vs. optimism, queer identity in the rural south, and more. At times I cried (the Brokeback Mountain episode!!) and other times I laughed (the “titty rings” episode!!!).
However, the show also came under fire after its release due to the questionable ethics of reporting, in-depth, on a man who passed away before he could give consent for the show to be aired. At times, the show even reveals admissions and thoughts that John B. explicitly stated were to be “off the record.” Brian Reed’s disclaimer at that point in the show – that it’s good to try to know another person, and that John B. didn’t believe in an afterlife and so would not mind what was shared about him after his death – seemed weak even to me, a huge fan. I think in reality, the show’s producers simply knew that they had something amazing on their hands and couldn’t resist publishing it, despite the potential moral implications.
Despite praise and popular success, some sources criticized the show from the beginning. The Guardian called it “voyeuristic”; the Atlantic questioned whether the creation of the show was worth the pain it may have caused John B. and his family and friends. Now, John B.’s estate has brought a lawsuit against the creators of the show alleging that they exploited his privacy for personal gain.
What does the law say on this subject? Alabama law relied on common law precedents for cases involving publicity and privacy rights, until 2015, when the state legislature enacted the Alabama Right of Publicity Act, AL Code § 6-5-770 (2016).
Pros and Cons to the Case
The lawsuit will likely be using this law to try to find the show liable. The law provides that using someone’s identity for commercial purposes without consent is illegal, and states that “liability may be found under this section without regard as to whether the use is for profit or not for profit.” This could potentially make the show liable. The law allows compensatory damages (which could include the profits from “S-Town”), a penalty of $5,000.00, punitive damages, and injunctive relief as remedies. This means that if the show was found liable under this law, they could get away with paying a small fine, or they could be forced to give the profits of the show to the estate and even pull the show from the air.
However, the law also seems like it may work in favor of the show. The law states that if the use of the person’s identity is in “documentaries” or “is part of an artistic or expressive work, such as a live performance, work of art, literary work, theatrical work, musical work, audiovisual work, motion picture, film, television program, radio program or the like,” it is allowed. The shows’ creators can definitely argue that the show is a work of art falling under the protected category. Because the show was produced for public radio, and was not used to advertise or sell a product, that may add an extra layer of protection. For their part, representatives of the show have stated that this lawsuit is without merit.
I am very curious to see where the lawsuit goes. Because this Alabama law is relatively new, leaving publicity rights in the state a little bit up in the air, it may even become an important case in deciding what the scope of the law is.