Alabama Court Decides Publicity Rights Trump First Amendment In S-Town Lawsuit

from the not-how-it-works dept

We've written for some time about the scourge that is publicity rights laws and the fairly blatant way in which they tend to butt up against the First Amendment. While famous folk certainly do have the right to reserve the use of their likeness and names from those that would use either for commercial purposes, too often these laws are instead used to silence non-commercial speech, or speech that revolves instead around journalistic efforts. A famous person, for instance, cannot use publicity rights laws to keep a newspaper from printing factual information about them, or a movie maker from producing a documentary about them. This is First Amendment 101.

But it seems some in the legal field skipped that class. One judge in Alabama has decided to shoulder the First Amendment to one side and favor instead the state's publicity rights laws to allow a lawsuit against the producers of famed podcast S-Town to move forward.

Serial Productions, This American Life Public Benefit Corporation and journalist Brian Reed must face a lawsuit for allegedly violating a dead man's likeness in S-Town, the controversial but acclaimed podcast that has been downloaded more than 80 million times. An Alabama judge's rejection of a dismissal motion on Friday is almost certain to prompt concern among media lawyers.

At issue is John McLemore, the man who had originally emailed This American Life about a supposed murder in his hometown. While nothing came of that claim itself, McLemore eventually committed suicide. That suicide was the impetus for S-Town, with the podcast diving deep into McLemore's life and death.

In other words, S-Town became a docuseries of sorts about McLemore. Now the estate is suing under Alabama's onerous publicity rights laws. Serial Productions, producers of S-Town, sought a dismissal on First Amendment grounds, because of course it did.

"Because S-Town is both a public interest and an artistic work, the Estate’s claims must fail," stated Serial Productions and other defendants in a motion to dismiss. "First and foremost, the imposition of liability under the Act in connection with S-Town would violate the First Amendment free speech rights of the Defendants. Imposition of liability also would violate the Act itself. ... S-Town, a 2017 Peabody award winning podcast, is specifically exempted under the Act as a public interest documentary work. It is also specifically exempted as an expressive and artistic work. The creation and distribution of S-Town is exactly the type of constitutionally-protected speech the Alabama legislature took great pains to exclude from liability under the Act."

The judge, however, has allowed the case to move forward. Without spending any real time taking on the First Amendment claims generally, the judge instead points back to the publicity rights law in Alabama and suggests that because S-Town has advertisements within it, it therefore qualifies as a commercial use of McLemore's identity. This defies all kinds of previous caselaw indicating that advertisements don't suddenly make expressive speech commercial speech. And, frankly, such a view would seem to undermine all kinds of media enterprises that advertise as part of their business model, from newspapers to news on television.

"Taking these allegations as true, the Court cannot conclusively determine that Defendants' use of McLemore's indicia of identity is non-actionable as the contents of any and all the alleged advertisements or promotions allegedly using McLemore’s indicia of identity are not before this Court. Although Cargile refers to the S-Town podcast generally in his counts, the Court assumes that Plaintiff’s general reference to the podcast includes both S-Town’s expressive contents and the advertisements that interject at regular intervals throughout each episode as well as any other advertisements or promotion materials related to S- Town. Therefore, Cargile has stated a plausible claim for relief under the Act, and Defendants’ motion to dismiss is due to be denied."

Now, this is just a ruling on a motion to dismiss, but it's bad nonetheless. Imagine a world where the famous could bar journalistic outlets from reporting or doing documentaries on them if those same outlets sell advertising? Is that a better or worse place than a world properly governed by the First Amendment and protected speech?

One hopes the legal team for Serial Productions can educate the court through the trial phase as to why it's speech is protected. Otherwise, the journalism and documentary industries are in for a world of trouble.

Filed Under: 1st amendment, alabama, brian reed, free speech, john mclemore, journalism, publicity rights, s-town, this american life
Companies: serial productions, this american life


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  • identicon
    TFG, 29 Mar 2019 @ 2:00pm

    The headline confused me for a while before I remembered that 'trump' was a verb before it was the POTUS's last name.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 29 Mar 2019 @ 2:08pm

      Re:

      We'd have avoided this problem if they weren't capitalizing words for no good reason.

      Then there's the problem that the headline's not true. The court didn't decide that publicity rights trump the First Amendment; they simply weren't convinced about the opposite.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 29 Mar 2019 @ 3:06pm

        The court didn't decide that publicity rights trump the First Amendment; they simply weren't convinced about the opposite.

        By allowing the lawsuit to move forward, the court made a clear decision on whether publicity rights are more important than the First Amendment — and that decision was “yes, they are”.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Mar 2019 @ 4:40pm

        Re: Re:

        The First Amendment provides that all speech is protected by default.

        Everything that is not protected speech is an exemption carved out of the First Amendment. These exemptions are made because allowing that particular type of speech would violate other human rights, and be more detrimental to society than forbidding it.

        These exemptions are often reasonable and important. Exemptions such as HIPPA, which state your doctor can't choose to sell anyone your medical history. Or libel and slander, which state that you can't tell lies about someone and get them in trouble. Or copyright and patents, which state that nobody can take a copy of that book you just wrote or gadget you just invented, make a million more copies without your permission, and get rich off of it. Or classified secrets, which state that you can't just tell everyone your employer's Twitter password or secret soda formula.

        In short, allowing a form of speech to be punished means that the speech has violated a right which is more important than the right to speak freely.

        In this case, the right allegedly being violated by the speech is the right to sell your soul likeness under Alabama publicity law, solely because of advertisements interjected throughout a factually-inspired work.

        By allowing the case to continue, the Judge is stating that the plaintiffs' right to profit off of the name and appearance of a relative who killed themselves is more important than the right of the defendants to speak freely about the life of a man who committed suicide.

        In some cases this might be reasonable; if I wrote a movie about one of my friends (or even better, one of my enemies) and sold it to Hollywood without an agreement with this frenemy, they'd have a good argument that I was unfairly profiting off of their likeness: I get paid because I'm selling their image. (Harder if they're a public figure.) If I made a commercial featuring papparazi footage of a celebrity enjoying my product and used that to promote my product, the celebrity would have a good argument that I was unfairly profiting off of their likeness: I get paid because I'm selling their image. (Harder if they're not a public figure.)

        But if talking about someone for 22 minutes and selling the other 8 minutes to the highest bidder was violating that someone's right to sell their image, it would be illegal for news stations to play commercials. Clearly, that's not the case.

        reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 29 Mar 2019 @ 4:43pm

        Re: Re:

        We'd have avoided this problem if they weren't capitalizing words for no good reason.

        Whether or not it's a good reason is debatable, but capitalizing every word in a headline is pretty standard style.

        Many style guides (including APA, Chicago, MLA, and AP) wouldn't have used a capital letter on "in", but would otherwise be identical to the headline here, including capitalizing "Trump".

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Mar 2019 @ 5:14pm

        Re: Re:

        Titles, headlines, and their similar relations are almost always capitalized. Welcome to Earth.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Mar 2019 @ 12:52pm

          Re: Re: Re:

          Right. They're doing it only to match a style, which is to say there's no good reason.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 30 Mar 2019 @ 5:13pm

            Re: Re: Re: Re:

            That is still a standard thing to do, and it not unusual. Saying that isn't a good reason implies you jut don't like the standard style of usage. Titles you capitalize the first letter.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 30 Mar 2019 @ 5:23pm

              Re: Re: Re: Re: Re:

              Although, to quibble ever so slightly, capitalizing "in" is not journalistic standard. The Chicago Style, Associated Press standard, and the scholarly APA and MLA standards would all show the title as, "Alabama Court Decides Publicity Rights Trump First Amendment in S-Town Lawsuit".

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 31 Mar 2019 @ 5:25am

              Re: Re: Re: Re: Re:

              Yes, we've always done it that way, no reason to change now .....

              reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 30 Mar 2019 @ 5:16pm

            English

            Hi, I'm your host Droue Kheirea and welcome to another episode of Who's Language Is It Anyway, where the rules are made up and the points don't matter.

            reply to this | link to this | view in chronology ]

  • identicon
    Agammamon, 29 Mar 2019 @ 2:01pm

    Here's the real problem with Donald Trump.

    I had to read that headline like three times before it made sense - oh, trump, not Trump.

    reply to this | link to this | view in chronology ]

    • identicon
      An0nym0us C0w3r3d, 29 Mar 2019 @ 5:01pm

      Re: trump Trump

      Do Trumpets trump Trump? And if so, do the headlines trumpet 'Trumpets trump Trump', or 'Trumpets TRUMP Trump'? And if the trumpeting headlines were banned, would that be 'Trumpets trump Trump trumped' or 'Trumped trumpets trump Trump'?

      Actually those wouldn't be allowed either because they have the same cadence as driving over the Tallahatchie bridge with a stone in your tire, and someone has already copyrighted that sound.

      reply to this | link to this | view in chronology ]

      • identicon
        Qwertygiy, 30 Mar 2019 @ 6:25pm

        Re: Re: trump Trump

        Ah, but I'm afraid I must play my trump card on your trumped-up trumpeting about how Trump's trumpets must be truncated by a troublesome tramp presumptiously thumping chumps in the rump with a grumpy summons to the umpires of law.

        Such a bumptious assumption would dump the frumpy bumpkin in a untriumphant, harrumphing lump, as it is trademarks that trample the truant troubadours in crumpled jumpsuits who trumpet their transpiciously transgressing transmissions. Our rump-thumping tramp will only trouble troops to jump on his traumatized trumpet-trumping transcribers if they transport a triplicate of his tremolo through the troposphere without transformation, instead of transcribing a transfiguring treatment of that troubling rumpus.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 Mar 2019 @ 5:28am

          Re: Re: Re: trump Trump

          Just think ... we would not be able to make these puns and jokes if it were not for Donald changing his name from Drumpf as that would not work as well.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 Mar 2019 @ 2:06pm

    From the “this website sucks” department.

    Just close this shit already. Nobody gives a shit.

    reply to this | link to this | view in chronology ]

    • identicon
      Glen, 29 Mar 2019 @ 2:16pm

      Re:

      Apparently you gave enough of a shit to post.

      reply to this | link to this | view in chronology ]

    • identicon
      Agammamon, 29 Mar 2019 @ 3:04pm

      Re:

      Then why do you keep coming back?

      You know what? I've seen hundreds of thousands of websites that posted content no one gave a shit about. And you know what I did? Clicked onto the next thing I was interested in and never came back and never gave them another thought.

      reply to this | link to this | view in chronology ]

      • identicon
        Agammamon, 29 Mar 2019 @ 3:05pm

        Re: Re:

        Because what's more pathetic - the pathetic website or the guy who has so little going on he has to fill his time with coming around telling the website its pathetic?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Mar 2019 @ 10:10pm

      Re: Your tears taste delicious. 😉

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Mar 2019 @ 3:24am

    Isn't it settled law that even a show that covers an individual does not violate their right to publicity if the show has sponsors?

    It WAS settled law, once upon a time. Why is this case difference?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Mar 2019 @ 8:01am

    Imagine

    "Imagine a world where the famous could bar journalistic outlets from reporting or doing documentaries on them if those same outlets sell advertising?"

    Journalistic outlets that couldn't rely on advertisers for revenue, I mean - no ads? News organizations that might stop reporting on the famous?

    Oh, wait First Amendment...damn! That was close.

    reply to this | link to this | view in chronology ]


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