How Does Mad Men Get Away With Publicly Badmouthing McCann Erickson?

Devotees of Mad Men, a.k.a. The Greatest TV Show Of All Time, will know what I mean by that headline. The show has never been shy about casting McCann Erickson, a real life ad agency, in an unsympathetic light. For years, McCann was the major rival for our struggling protagonists; in an earlier season, Don Draper, Roger Sterling, and Bert Cooper started their own agency just to get out from McCann's clutches. And now that McCann finally bought and dissolved SC&P this season, we get to see how unpleasant it is from the inside as our favorite ad men and women adapt to life there with great difficulty. But if you saw last week's episode and Joan's treatment at the hands of the lecherous Ferg Donnelly and cruel Jim Hobart, you know the show is no longer interested in treating McCann with cool indifference; McCann is now the villain. Full Stop.

I don't know if Matthew Weiner worked there one summer and hated it or what, but it's clear he has a bug up his butt about it. So, as my wife asked me last night, how does Mad Men get away with badmouthing McCann so brazenly? 

And the truth is I don't know. I originally thought that it might have to do with the fact that Ferg and Hobart, the faces of McCann on the show, are fictitious. But then again, Mad Men isn't trying to slander two fake men, or any actual people they may have been based on. The show is attacking the company and its entire corporate culture. Keep in mind that McCann Erickson is still in business today. And it's famous for developing some of the best known ad campaigns of the 20th century, like Coke's "I'd like to teach the world to sing" campaign, MasterCard's "For everything else, there's MasterCard" campaign, and the Rice-a-Roni jingle. You'd think it would have something to lose by being mercilessly berated in such a public fashion. I personally think McCann has a good defamation claim against AMC. Defamation, after all, is designed to ruin someone's reputation in the eyes of others, and I don't think it would be hard to argue that Mad Men is doing just that. 

Under New York law, any party (yes, corporations too) can bring a defamation claim if the alleged statement is:

  1. False;
  2. Published to a third party without privilege or authorization;
  3. The publication amounts to at least negligence; and
  4. The statement caused special harm or defamation per se.

California's defamation law, which is governed by statute, is substantially the same. And while there are several defenses and privileges to escape a defamation suit (such as the statement being true, having consent of the defamed party, fair reporting, or a good faith belief that the statement was true even if it turned out not to be), it doesn't appear to me that any would apply in this case.

I suppose it could be argued that Weiner is interested in showing the "truth" of corporate culture in the 60's and 70's, since that's been a running theme of the show, but he could have done that with a fictional agency. Of course, that might have violated Weiner's mandate for extreme verisimilitude, which is a hallmark of the show.

So how does Weiner get away with it? Did he secretly get permission from McCann? Does he just not care? Does McCann? Did AMC give Weiner carte-blanche and promise to indemnify the show against a potential suit? Or does McCann just not want to look bad by attacking a popular show?

EDIT: I just saw this article in AdWeek claiming that being cast as the villain has actually increased McCann's social media awareness. They also appear to have a pretty good attitude about it, all things considered. I guess it's true what they say: there's no such thing as bad publicity.

SECOND EDIT: Ever since this article was mentioned on Above The Law, I've had a number of comments (none of which I approved) claiming that my analysis doesn't have any basis in reality because the show is fiction and so is its representation of McCann. Well yeah, that's exactly the point. Defamatory statements are false by definition. It doesn't matter if the show is a work of fiction or is documentary in nature. All that matters is that the statement is false and has a deleterious effect on the party whose reputation is at stake. If McCann can prove that its depiction on Mad Men was false and harmful to its reputation, the show can be liable for that damage. To do that, McCann would have to prove its harm through financials, word of mouth, defamation per se, or any other metric. In this case, it seems that the show's depiction of McCann has actually helped the company's standing, meaning they're not inclined to sue anyway, but even if they were, they couldn't prove the harm. To simply say "well the show is fiction so it doesn't matter" is burying your head in the sand and willfully ignoring the reality of the law.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA