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CBS Wins Odd 'CSI' Defamation Case On Appeal

'CSI' writer named her house brokers in murder episode after her attempt to buy a home went bad.

CSI: Crime Scene Investigation
Sonja Flemming/CBS

CBS has won a fascinating lawsuit that claimed that characters on the hit drama CSI had defamed married real estate brokers who sold one of the show's writers a home in a deal gone bad. An appeals court tossed the lawsuit on Tuesday, finding the episode in question was an exercise of free speech. The decision also absolved the network of responsibility for allegedly defamatory material in leaked spoilers.

Scott and Melinda Tamkin brought the lawsuit after noticing that the 13th episode of the 9th season of CSI featured two characters with similar names to them. The plaintiffs believed themselves to be the thinly veiled inspiration behind an episode that featured a slick, attractive, hard-drinking extensive bondage/porn-watching character, "Scott Tucker," who is distraught over the nation's mortgage crisis that threatens foreclosure on his own home. In the episode, "Scott" is a suspect in the murder of his wife, "Melinda Tucker," whose death may have occurred during kinky sex in which she was handcuffed to the bed.

In an early draft of the episode, CSI writer Sarah Goldfinger used Scott and Melinda Tampkin's real names in the script. The character's names were changed during the legal clearance process, but since fan websites pay attention to casting synopses, Scott and Melinda Tamkin were named online as a pair of sexually deviant real estate brokers.

What would have prompted Goldfinger to do this?

The Tamkins told a court that they had sold Goldfinger a house, but that after Goldfinger's offer was accepted, she exercised her right to cancel the transaction because an inspection revealed the property would require extensive remediation.

On March 22, 2009, the Tampkins sued for defamation and false light invasion of privacy, over the alleged "intentional and reckless conduct with respect to the writing and dissemination of a screenplay." 

The Tamkins acknowledged that the names of Goldfinger's characters were changed during the actual broadcast of the episode but alleged that "the damage was clearly done because of the widespread dissemination on the Internet" of casting synopses containing the Tamkins' names, and wanted the court to review the producers' "lack of authorization and responsibility for the spoilers."

In response, CBS filed an anti-SLAPP motion, alleging that the Tampkins' lawsuit was an abridgement of its free speech rights. Goldfinger maintained it was common in the industry to use real names as placeholders for the names of characters.

On November 4, 2009, a trial court turned down the network's attempts to dismiss the case, which the appeals court has just overruled.

Justice Nora Manella writes that the creative process must be unfettered, and even though Goldfinger didn't need to use real names as placeholders for guest characters, it would be imprudent to place legal pitfalls that disrupt a writer at work. The judge finds that the defendants' acts are in furtherance of their exercise of the right of free speech, and that a trial court judge was wrong to deny the anti-SLAPP motion.

Perhaps just as importantly, Justice Manella seems to foreclose much of the "libel in fiction" legal theory that has been gaining steam in some court circuits (see here, for example), finding that although Scott Tamkin worked in the real estate business, he was not a mortgage broker, and there were other differences in the biographical profile of the real-life individual and the fictional one described in the casting synopsis.

"We also conclude that no reasonable person who read the casting synopses and then saw the television broadcast would have understood the fictional characters portrayed in episode 913 to be plaintiffs," writes the judge.

Eriq Gardner can be reached at eriqgardner@yahoo.com and can be followed on Twitter.