Rights of publicity and privacy can present issues for podcasters and other media companies who feature people in their productions. Almost two years ago, we wrote about the lawsuit brought by the surviving family members of the character who was central to the S-Town podcast. The podcast focused much of its attention on the life of this individual who was not an elected official or any other sort of public figure. As the individual died before the podcast’s release, the family sued on his behalf, arguing that the podcast violated his rights of publicity. The lawsuit now has reportedly been settled. That settlement suggests that we should repeat the advice that we gave when the suit was first filed, as that advice remains relevant today.
Various states grant individuals rights of publicity to exploit their names, likeness, or stories – essentially barring others from exploiting that person without his or her permission. Other state laws grant individuals a right of privacy to keep private facts private. While the details and exceptions to these rights differ from state to state, they generally do not restrict bona fide news stories about public figures or reporting on other matters that are in the public interest – and the First Amendment provides broad protections for truthful stories about public figures. Most broadcasters and other media companies don’t routinely run up against the restrictions set out in these laws in their day-to-day coverage of news events. But the analysis may be significantly different when a podcast or other media production gets into the stories of individuals who are not public figures.
Podcasts and various other reality programming, in particular, may be more lifestyle-oriented, and may detail private facts about individuals who are not in the news, leading to issues like those raised in the S-Town litigation. Getting a release from the subject of an interview waiving the subject’s rights to publicity and privacy, and otherwise giving the producer the rights to exploit the recordings that are made, can help to reduce the risk that these laws may otherwise pose. In addition, a release may offer other benefits.
In the last few years, there have been several stories initially developed for podcasts that have been repurposed and developed into movies or television programming – or the podcasts themselves may be used beyond the original medium for which they were created. Having the rights from the individuals interviewed for the podcast to use that material (both the actual recordings and the stories conveyed) in any medium may make it safer to repurpose that content for use in later productions. It also helps to reduce liability concerns if the company creating the podcast is looking to do some sort of business transaction (as is reportedly the company behind the S-Town podcast).
Obviously, the risks may monetarily be different for a large, successful podcast than for one produced in a basement focusing on purely local businesses. But the legal issues are the same, and even the stay-at-home podcaster hopes that one day, his or her podcast will be discovered by the world and become the next S-Town (or the podcast produced by the same company, Serial). So a little advance planning for that day, or to avoid the risks that even the basement podcaster can face as it can be subject to these lawsuits and likely will have far fewer resources with which to defend against such claims if they are brought, is worth the time.