Wednesday, March 2, 2011
Court of Appeal Rejects Defamation Action Over ‘CSI’ Script
Panel Says Suit Over Writer’s Use of Plaintiffs’ Personae to Create Characters Is SLAPP
By KENNETH OFGANG, Staff Writer
A pair of real estate agents who did business with a writer for “CSI: Crime Scene Investigation” were not defamed by her use of aspects of their lives to create characters for the hit television show, this district’s Court of Appeal ruled yesterday.
Div. Four, in an opinion by Justice Nora Manella, said Los Angeles Superior Court Judge Michael C. Solner erred in denying a motion by CBS Broadcasting, Inc. and writer Sarah Goldsmith to strike Robert and Melinda Tamkin’s action under the anti-SLAPP statute.
Contrary to the trial judge’s ruling, Manella said, the creation of a television show is a matter of public interest to which Code of Civil Procedure Sec. 425.16 applies, so the burden was on the plaintiffs to show a likelihood of prevailing.
The appellate jurist further concluded that the Tamkins, whose real surname was not used in the show but accidentally appeared in a synopsis that was released online without authorization, cannot prevail because they were not defamed as a matter of law.
In support of the motion, Goldfinger explained that she met the Tamkins, real estate agents in their 30s, when they represented a seller whose home Goldfinger offered to buy. The offer was accepted, but Goldfinger exercised her right to cancel after an inspection revealed the property would require extensive remediation.
Three Years Later
Three years later, Goldfinger and another writer were assigned to write the script for a CSI episode. They decided to include a storyline involving a married couple working in the mortgage or real estate business, one of whom would commit suicide.
Goldfinger explained that for purposes of the working drafts, she used the Tamkins’ names to represent the characters. This is a common device for remembering characters’ names, she explained, although names of real persons are always changed during the final editing process.
In this instance, “an incomplete preliminary draft” of the script was sent to a third-party company by CBS casting staff in order to prepare synopses used to cast the guest parts in the episode. The draft was apparently leaked, despite procedures the company had in place, as a result of which the synopses of the characters appeared on several websites, including those of the actors chosen to play those parts.
Viewers of the sites thus read that “Scott Tamkin” was a mortgage broker and a hard drinker who liked pornography and was suffering because of the economy, and who was suspected of murdering his wife. “Melinda Tamkin” was a real estate agent who would not let the bad economy “freak her out” and whose “death may have occurred during kinky sex in which she was handcuffed to the bed.”
By the time the episode aired, the characters’ names had been changed to Scott and Melinda Tucker. But the real-life Tamkins, in a suit for defamation and false light invasion of privacy, claimed that the defendants had “highjacked” their identities and subjected them to ridicule, because their real names appeared online and because they shared first names and other characteristics with the characters in the episode as aired.
But Manella, writing for the Court of Appeal, said the defendants were exercising their free speech rights in connection with a matter of public interest, specifically the television show.
The Tamkins, she went on to say, could not show that either the synopses or the program defamed them, because the similarities between the plaintiffs and the characters were not so great that a reasonable person would believe “that the fictional Scott Tamkin is the real Scott Tamkin” or that “the fictional Melinda Tamkin referred to the real Melinda Tamkin.”
The similarity between the plaintiffs and the characters, in terms of their involvement with real estate and their ages and the fact that they were married, would not have caused a reasonable person to think that the plaintiffs shared the characters’ unsavory characteristics, the justice elaborated.
Besides the surname change, she noted, the episode was set in Las Vegas, not in Los Angeles where the plaintiffs live, and the characters had no children, whereas the plaintiffs have three. And there is no reason to believe that someone using the Internet looking to hire a real estate agent or simply find the plaintiffs would conclude from the search results that the plaintiffs were involved with pornography, kinky sex, or the television show, the jurist said.
Attorneys on appeal were Andrew M. White, David E. Fink, and Tami Kameda of White, O’Connor, Fink & Brenner for CBS and its writer and Anthony Michael Glassman and Rebecca Nell Kaufman of Glassman, Browning, Saltsman & Jacobs, Inc. for the Tamkins.
The case is Tamkin v. CBS Broadcasting, Inc., B221057.
Copyright 2011, Metropolitan News Company