Blogumentary

February 22, 2013 - by: Adam Klarfeld 0 COMMENTS

NBC just seems to know when it’s my scheduled turn to blog reactions to The Office. Rather than face my intense scrutiny and the inevitable backlash from all of my loyal followers (i.e., my mom), the network punted, airing a full hour of Parks & Recreation instead. I was a few episodes behind anyway, so at least this gave me the opportunity to catch up.

While I will never have that time back, I was excited to see the Internet pop-up advertisement for the airing of The Office, a 10-year documentary in the making. There are so many mockumentaries out there right now (e.g., Modern Family, Parks & Rec, Sportscenter commercials, etc.) but there are no documentaries shown within those mockumentaries. (What’s to stop the next mockumentary from creating a mockumentary of a mockumentary of a documentary? The thoughts I can provoke are just mind blowing, I know). Anyway, I’m thinking there are going to be at least one or two embarrassed Dunder Mifflin employees from the airing of The Office.

I’m assuming that they appropriately waived any rights to privacy including the tort of Appropriation. See, e.g., Moore v. Sun Publishing Corp., 881 P.2d 735, 743 (N.M. Ct. App. 1994) (“Invasion of the ‘right of publicity,’ also known as ‘appropriation,’ consists of the exploitation of the plaintiff’s name or likeness, usually for commercial gain, as in the unauthorized use of the plaintiff’s name in an advertising endorsement for a product.”). I think the disgruntled Dunder Mifflin employees may only have potential claims for defamation. See Siegel v. Sundance Institute. Defamation involves the following four elements: “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Restat 2d of Torts, § 558.

Unfortunately for the embarrassed parties, the statements from the documentary are probably going to be true–a valid defense to defamation claims. Because Dunder Mifflin should not be the “publisher” of the statements, presumably the company has little exposure to these claims. Under the law of defamation, however, “everyone who takes part in the publication, as in the case of the owner, editor, printer, vendor, or even carrier of a newspaper is charged with publication.” Thus, Dunder Mifflin may have some exposure depending on its level of participation in the documentary for defamation claims.

We’ll have to wait and see how everyone views the documentary of course. And, knowing NBC, this will not likely happen on my watch…

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