S Town
S Town
Before the Court is Defendants, Serial Productions, LLC, This American Life
Public Benefit Corporation, Brian Reed, Chicago Public Media, Inc., Shittown,
“Defendants’”) Motion to Dismiss. (Doc. 14.) Plaintiff has timely filed his
opposition. (Doc. 22.) The motion is fully briefed and ripe for review. For the
I. BACKGROUND 1
1
In evaluating a motion to dismiss, the Court “accept[s] the allegations in the complaint as
true and constru[es] them in the light most favorable to the plaintiff.” Lanfear v. Home Depot,
Inc., 679 F.3d 1267, 1275 (11th Cir. 2012). The following facts are, therefore, taken from
Plaintiff’s allegations contained in the Complaint, and the Court makes no ruling on their
veracity.
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American Life, which is owned and produced by Defendant This American Life
Public Benefit Corporation (“This American Life”), and asked them to investigate a
emails and phone calls with McLemore about investigating his claims. After a series
murder. The events that followed McLemore’s initial contact with This American
Life were documented in the podcast, S-Town. S-Town, billed as the “unearthing of
the mysteries of one man’s life,” consists of seven hour-long episodes with
advertising breaks. Each episode features original narration by Reed, excerpts from
transitioning to S-Town’s main story: McLemore. In the first episode, Reed travels
occurred in Woodstock. In the second episode, Reed reveals that, after his
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information to McLemore and the two fall out of contact. However, the second
episode ends with the shocking revelation that McLemore has committed suicide.
McLemore’s family and friends to find out more about McLemore and his life up
until the suicide. The episodes of S-Town that follow detail the information Reed
gathered both about McLemore and his death. Through past interviews with
McLemore himself as well as more recent interviews with those who knew
depressed thoughts, suicidal ideations, financial affairs, physical and mental health
issues, and his interpersonal relationships with friends, family members, and sexual
partners.” (Doc. 1-1 ¶21.) Reed’s exploration of these subjects in S-Town uses
For example, in Episode 3 Reed interviews two individuals about the details
McLemore’s suicide and how his body appeared after it was discovered. In Episode
6 Reed explores, at times in great detail, the nature of McLemore’s sexuality and
speculates on McLemore’s sexual orientation based not only on supposedly off the
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record discussions with McLemore but also interviews with other individuals who
mental health issues and that he confided in Reed prior to his death that he had
been considering suicide, but that Reed had not reported it. Following up on
alleged to have undertaken including paying to have his nipples tattooed with an
empty needle. The episode contains an audio recording of one of these sessions,
Defendants are alleged to receive revenues from advertisers for each download.
to advertise and promote the products, goods, and services of advertisers including
II. STANDARD
In general, a pleading must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). However, in
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complaint “must plead enough facts to state a claim to relief that is plausible on its
face.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347– 48 (11th Cir. 2016) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks
omitted). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stated
another way, the factual allegations in the complaint must be sufficient to “raise a
right to relief above the speculative level.” Edwards v. Prime, Inc., 602 F.3d 1276,
1291 (11th Cir. 2010). A complaint that succeeds in “identifying facts that are
survive a motion to dismiss. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1296 (11th Cir.
2007) (quoting Twombly, 550 U.S. at 556) (internal quotation marks omitted).
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. This Court then “assume[s] the[]
whether they plausibly give rise to an entitlement to relief.” Id. Review of the
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judicial experience and common sense.” Id. If the pleading “contain[s] enough
recovery under some ‘viable legal theory,’” it satisfies the notice pleading
standard. Am. Fed’n of Labor & Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178,
1186 (11th Cir. 2011) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d
must convert the motion to dismiss into a summary judgment motion.” SFM
Holdings, Ltd. v. Banc. of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010).
the plaintiff’s claim, and (2) its authenticity is not challenged.” See id. (citing Day
v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)). Both parties incorporate by
reference and rely upon the expressive contents of S-Town in their pleadings.
Town.2 Thus, the Court will take the expressive contents of S-Town into
consideration.
2
Cargile asserts that S-Town contains fictionalized descriptions of McLemore’s life but
does not contest the authenticity of the expressive contents of S-Town. Cargile, however, does
take issue with the audio recordings of the advertisements that accompany the audio recordings
of S-Town that Defendants submitted. (See Doc. 22 at 6 n. 2.);(Doc. 14-8.)
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III. DISCUSSION
Ala. Code § 6-5-772(a). Liability exists “without regard as to whether the use is for
profit or not for profit.” Id. § 6-5-772(b). The Act cautions that it is not to be
interpreted as to “allow for an abridgement of free speech rights under the First
Alabama of 1901.” Id. § 6-5-773(a). In keeping with this guidance, the Act exempts
the “fair use” of indicia of identity in public interest works and artistic works. See
id. § 6-5-773 (b) (“It is a fair use and not a violation of Section 6-5-772 if the use of
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performance, work of art, literary work, theatrical work, musical work, audiovisual
work, motion picture, film, television program, radio program or the like. . . .”).
identity in S-Town violates the Act because Defendants have received advertising
revenues from each download of S-Town. To the extent Cargile brings suit on this
ground, the Court is doubtful that this would be sufficient to state a claim under
this Act, given that S-Town arguably falls within the Act’s artistic work exemption.
(Doc. 1-1 ¶ 23) Taking these allegations as true, the Court cannot conclusively
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
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contents and the advertisements that interject at regular intervals throughout each
Town. Therefore, Cargile has stated a plausible claim for relief under the Act, and
Defendants also request that this Court dismiss Cargile’s claims for (1)
Act. Because the Court is not dismissing McLemore’s claim under the Act at this
remedies and not causes of action. Defendants are correct to the extent Plaintiff
So. 2d 616, 620 (Ala. 2001). However, Cargile’s additional requests for relief are
4
Defendants raise for the first time in a footnote in their reply brief an argument that the
Act does not apply retroactively. (Doc. 32 at 2 n.2.) Since this argument was raised for the first
time in Defendants’ reply brief with no opportunity for Plaintiff to respond, it would be improper
for the Court to take up this argument at this time. See Carter v. Austal, U.S.A, L.L.C., No. 08–
00155–KD–N, 2011 WL 3203761, at *5 (S.D. Ala. Apr. 1, 2008) (“[defendants] cannot assert new
allegations or arguments raised for the first time on Reply”); Abrams v. Ciba Specialty Chemicals
Corp., 663 F. Supp. 2d 1220, 1232 n.16 (S.D. Ala. 2009) (“new arguments are impermissible in
reply briefs.”).
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not made independent from Defendants’ alleged wrongdoing under the Act.
Therefore, Cargile’s requests for these forms of equitable relief are not due to be
IV. CONCLUSION
For the reasons stated above, Defendants’ Motion to Dismiss (doc. 14) is
denied.
_____________________________
L. Scott Coogler
United States District Judge
195126
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