If you do business with the writer of a television show, can the writer later use your name in a script without running afoul of defamation law?
According to a three-judge panel of California’s second appellate district, the answer is yes — so long as the description of the character isn’t close enough to your characteristics so as to allow a reasonable person to conclude the fictional depiction and real person are one in the same.
The background of this case is as follows: Real estate agents Scott and Melinda Tamkin worked with “CSI: Crime Scene Investigation” writer Sarah Goldfinger on a failed property deal. Sometime thereafter, Goldfinger wrote an episode of the forensic crime drama with a subplot about mortgage broker “Scott Tucker” and his wife, real estate agent “Melinda Tucker” — actually called “Scott and Melinda Tamkin” in an earlier version of the script that was sent to casting agents.
Although the names had been changed after vetting by a legal clearance team, the Tamkins’ real, full names were used in online “spoiler” forums as well as on the websites of the actors portraying the Scott and Melinda characters before the show aired in February 2009.
So why did the Tamkins object to their portrayal in the script? In the episode, Scott Tucker was described as a “hard-drinking extensive bondage/porn-watching man” and was a suspect in his wife Melinda’s death that “may have occurred during kinky sex.”
The Tamkins sued CBS for defamation and false light invasion of privacy, alleging the following:
After Defendant Goldfinger was involved in a failed real estate transaction with Plaintiffs, Scott and Melinda Tamkin, she hijacked their complete names, physical characteristics, personal characteristics, marital relationship, ages and professions to craft, without their knowledge or consent, an episode of the global blockbuster CSI: Crime Scene Investigation. Defendant Goldfinger then proceeded to embarrass the Tamkins, and potentially damage the successful business relationships they have taken years to build, by creating from whole cloth characters engaged in a reckless lifestyle of sexual bondage, pornography, drunkenness, marital discord, depression, financial straits, and possibly even murder.
CBS moved to dismiss the suit under California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law, asserting that “their conduct was protected activity and that plaintiffs could not establish a
probability of prevailing on their claims.” The trial court disgreed, but the appellate panel found in CBS’s favor (PDF).
First the panel noted that the activity was protected under the anti-SLAPP law as it was in furtherance of free speech “in connection with a public issue or an issue of public interest.” The court ruled that the public interest was found in the creative process, namely that “Goldfinger had asserted in her declaration that it was common in the industry to use real names as placeholders for the names of characters.”
The panel then found that the Tamkins would be unlikely to prevail on their defamation claim because “there is nothing about the physical description of the fictional Scott Tamkin, such as a special birthmark or a specific fashion accessory or hairstyle, which would allow a reasonable person to conclude that the fictional Scott Tamkin was in fact the real Scott Tamkin.” Similarly regarding Melinda Tamkin, the court ruled that “none of the physical characteristics are particularly unique and the remaining descriptive characteristics are insufficient by themselves to show that the fictional character is in fact plaintiff.”
Accordingly, the appellate panel ruled in favor of CBS.
What do you think of this ruling?