Is there such a thing as defamation of a slow cooker’s “character”?
No, but that doesn’t mean that it’s legal to disparage commercial products and brand names, even in fictional television shows.
The issue arose this week following a much-talked about episode of "This is Us." The beloved show set social media ablaze after Tuesday's episode with fans saying they'd toss out their Crock-Pots after a plot reveal involving a house fire.
The show's creator responded to the backlash by saying not to blame the company. "Taking a moment to remind everyone that it was a 20 year old fictional crockpot with an already funky switch?" Dan Fogelman tweeted. "Let's not lump all those lovely hardworking crockpots together."
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Crock-Pot released a lengthy statement assuring customers that its product was safe.
"It is important that our consumers understand and have confidence that all Crock-Pot slow cookers exceed all internal testing protocols and all applicable industry safety standards and regulations as verified by independent third-party testing labs," the statement said.
"For nearly 50 years with over 100 million Crock-Pots sold, we have never received any consumer complaints similar to the fictional events portrayed in last night’s episode. In fact, the safety and design of our product renders this type of event nearly impossible.
"Our hope is that the team at NBC’s ‘This Is Us’ will help us in spreading factual information regarding our product’s safety. While we know their primary mission is to entertain — something they have continued to excel in — we also feel they have a responsibility to inform," the statement said.
Defamation and disparagement are two distinct “torts” — reasons why you can sue other people. Defamation serves to protect a person’s character and reputation. Disparagement protects economic interests suffered when slurs affect the marketability of goods.
Proving disparagement of products is harder than proving defamation of a person’s character. To win a lawsuit, the Crock-Pot folks would have to show that (1) the statement is false; (2) “This is Us” intended — or reasonably recognized — the publication would cause financial loss; (3) Crock-Pot actually lost money; and (4) “This is Us” recklessly disregarded the truth in coming up with the “shorting Crock-Pot” scene — which would probably mean it’s known to be impossible that Crock-Pots can short circuit.
There are additional barriers to a lawsuit by Crock-Pot. First, it appears that the show used the generic name “Slow Cooker,” and not Crock-Pot. This is not an absolute bar to a lawsuit. If the show was clearly describing a specific product, changing the name will not necessarily protect it.
In addition, the show is obviously a work of fiction, not a documentary or a historical re-enactment. It’s hard to conclude that the show is making a factual assertion about the safety of Crock-Pots. This is not an absolute bar to a lawsuit either, though.
It’s hard to draw bright lines about product disparagement cases in works of fiction because no two cases in this realm are identical.
On the one hand, courts recognize that not every person or product must be fictionalized in film and TV. Otherwise, screenplay authors would be forced to conjure up entire alternative realms with completely fictional products, brands, and names.
But, sometimes shows do just that — create a fictional product to avoid even the specter of liability. Using or identifying real products in fictional television shows invites potential lawsuits. Whether those suits are winnable is highly fact-specific.