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Julie Hilden

The Defamation Suit Based on a "CSI" Episode: Will the Plaintiffs Prevail?


Thursday, May 28, 2009

Last week, a Los Angeles Times article told the story of an unusual defamation suit. The suit is based on an episode of the fictional TV series "CSI: Crime Scene Investigation." It thus falls into the very small category of claims of "defamation by fiction."

The "CSI" episode told the story of two married Los Angeles real estate agents, Scott and Melinda Tucker. It offered Scott as a possible suspect in Melinda's murder, and suggested that the Tuckers had had a kinky, sadomasochistic sex life. Previously, in real life, one of the episode's writers apparently had had a bad experience with two married Los Angeles real estate agents named Scott and Melinda Tamkin, when the expected sale of a house fell apart.

The real-life Tamkins now allege that the fictional "Tuckers" depicted in the "CSI" episode are thinly-veiled versions of them. As evidence on this point, the Tamkins allege that the name "Tamkin" - rather than "Tucker" - was used at casting calls and in early draft scripts for the episode, and in descriptions of the show that were posted on the Web before the episode aired. The change from "Tamkin" to "Tucker," they say, occurred only at the last minute.

By way of damages, the Tamkins' lawyer claims that the Tamkins could have lost substantial business if a potential client, after Googling their names, had read the online "CSI" episode descriptions and connected the characters' doings with those of the real-life Tamkins.

If this suit were to reach a jury, I think the jury might be quite unhappy with the way the Tamkins were treated - seeing them as "little guys" who were targeted by someone with a much larger podium, louder voice, and greater power. Although the real estate market's weakness could lower the Tamkins' damages, it could also bring home to the jury the Tamkins' plight, with jurors seeing the episode as adding insult to injury.

However, it is very unlikely that this suit will ever reach a jury. Instead, it very probably will - and should - be dismissed, in part for the reasons for which defamation-by-fiction suits almost always fail, and in part for reasons that are particular to this lawsuit.

Why Defamation-By-Fiction Suits Almost Always Fail

The basic elements of a defamation claim show why it's very difficult to base such a claim on a fictional account. To prove defamation, one must show a (1) false (2) statement, (3) of and concerning the plaintiff, (4) that causes damages. On each of these four vital elements, a defamation-by-fiction claim is weak.

First, fiction does not make a "statement" in the sense that nonfiction does, in that it does not purport to connect to the real world. In philosophical jargon, nouns in fiction do not have real referents - real-world persons or objects to which they point.

Second, and relatedly, statements in fiction don't have the qualities of truth or falsity, precisely because they don't refer to any real-world person, against whose actual qualities and behavior their accuracy could be checked. Fiction thus cannot be false, any more than it can be true.

Third, a truly fictional statement cannot be "of and concerning" the plaintiff because - as noted above - fiction doesn't refer to the real world. If a statement within a work of fiction refers to anyone, it refers to a fictional character, not a real person.

Fourth, and finally, a fictional statement cannot cause real-world damages - at least, not the kind of damages that defamation law envisions. Such damages must result from a specific attack, carried out in so many words, upon a real person that is believed by some to be true of that real person. By contrast, fiction that uses real names -- yet still is clearly fiction -- at most leaves the kind of vague smear that dirties up a real person by making an ugly but cloudy association between that person and an unflattering fictional character. But defamation is centrally about specific statements, not lingering stenches.

By comparison, a political figure might be humiliated and genuinely damaged in the eyes of others by an unflattering or exaggerated caricature that suggested ugly qualities, but he or she would not defamed by the drawing. That's because defamation is not an all-purpose remedy for every occasion where a reputation is tarnished. To the contrary, only if the other elements of defamation are fulfilled, is reputational harm even an issue in defamation. And here, none of the elements can be fulfilled if the episode was indeed seen by viewers as fiction, as it surely must have been.

Why This Suit Is Weak, Even Compared to Most Defamation-By-Fiction Suits

Of course, all the points made above -which address suits attacking fiction -- can be refuted if the statement at issue is reasonably construed by some readers to be nonfiction.

Thus, to take a hypothetical, the writer of a single fictional piece in a magazine that is otherwise chock-full of nonfiction might face a viable defamation suit, if the writer failed to demarcate his or her story as fiction, and if the writer used a real person's name in saying something derogatory. Context matters when a reader decides whether to interpret what he or she reads as fiction or nonfiction.

In this case, however, there is no question that the context cuts in favor of the network and the writer: Virtually everyone who knows about "CSI" understands that it is fiction. Moreover, even in the contexts where the plaintiffs allege that their real name, Tamkin - and not "Tucker" - was used, the context was still that of fiction: casting calls for actors, and episode summaries of a famous show that, again, virtually everyone knows to be fictional.

The network might have been in trouble had it, for example, put up a real estate site for the fictional Tamkins or Tuckers that could have been confused with a legitimate site, or even with the real-life Tamkins's site. But it did not do so.

Nor did it offer a "Based on a True Story" or "Inspired by a True Story" legend - the kind of legend we've all come to expect when a story is based, however remotely, in truth. (Indeed, if anything, such legends are used even when the connection to truth is remote or conjectural, as in the promotion of the horror movies "The Strangers" and "The Haunting in Connecticut.")

But what about the hypothetical Googling person whom the Tamkins' attorney raises? Couldn't that person draw some unflattering inferences about the real-life Tamkins from the CSI episode summaries?

This argument - while it is the Tamkins' best - is still very problematic. Here's why: Someone who read both the episode summary and information about the real-life Tamkins online would quickly realize that the real-life Melinda Tamkin is alive and well, and thus could not be equated with the murdered Melinda Tamkin in the episode summary. Similarly, the real-life Scott Tamkin is a businessman, not a murder suspect.

Furthermore, knowing that the two Melindas (one dead, one alive) could not be equated, the hypothetical Googler could not reasonably infer that the real Melinda and her husband- like their fictional namesakes - liked sadomasochistic sex.

It's true that the Googler might wonder if that was true - but defamation cases are about making false, damaging statements, not raising embarrassing questions. Thus, the right answer in this case - and the one the court is likely to reach - is that the allegations of the complaint describe a scenario that falls outside the kind that defamation law is meant to remedy.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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