Fair Use Unbalanced.

August 11, 2003 8:25 PM

Fair Use Unbalanced.Fox News has filed a lawsuit against Al Franken and his publisher for using their trademarked slogan in the title of his new book.
posted by XQUZYPHYR (60 comments total)

Regardless of how you feel about Franken or Fox News, does anyone think this lawsuit has any merit?

Franken's "intent is clear - to exploit Fox News' trademark, confuse the public as to the origins of the book and, accordingly, boost sales of the book," the suit said.

If Fox seriously thinks its viewers will be confused by a book called Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, then Fox probably has a lower opinion of Conservatives than does Mr. Franken.
posted by subgenius at 8:31 PM on August 11, 2003

A dubious lawsuit is only going to keep Al Franken's book stick at #1 for weeks and weeks longer than it would have.
posted by mathowie at 8:32 PM on August 11, 2003

Parody is fair use, muthafuckas!
posted by billsaysthis at 8:37 PM on August 11, 2003

Franken and O'Reilly have sparred at least twice, with Franken coming out on top, in my opinion, both times. He'll undoubtedly win this lawsuit too. It's weird that I never really had an opinion of Al Franken until he started taking on people I really hate, like Bill O'Reilly, Roger Ailes, Rupert Murdoch.. now it's a case of the enemy of my enemy being my friend. My whiny, deadpan, kind of pedantic friend.
posted by Hildago at 8:38 PM on August 11, 2003

This bit from the Drudge Report front page is just priceless:

"Franken is neither a journalist nor a television news personality," according to the complaint. "He is not a well-respected voice in American politics; rather, he appears to be shrill and unstable. His views lack any serious depth or insight."

Pots and kettles. Ducks and barrels.
posted by Armitage Shanks at 8:52 PM on August 11, 2003

Oh come now, the man got away with calling a book "Rush Limbaugh is a Big Fat Idiot." This is nothing in comparison.
posted by ilsa at 8:55 PM on August 11, 2003

What mathowie said, plus: Idiots!..........idiots and cretins! Cretins and idiots!
posted by troutfishing at 9:31 PM on August 11, 2003

Slight update re: Armitage's comment: the NY Times' Tuesday Metro Section apparently confirms some of the wording in the complaint leaked by Drudge. (free reg. req., disclaimer: family member works at Times)

I agree with what some bloggers have been saying already: the idea that Fox is going to use angered opinions and unsubstantiated allegations of drunkenness as basis for part of their lawsuit seems to give credence to Franken's potential abilty to "respond" with a libel/slander countersuit.
posted by XQUZYPHYR at 10:09 PM on August 11, 2003

Fox News registered "Fair & Balanced" as a trademark in 1995, the suit says.

Wow. Nothing like getting the big lie out of the way first -- it must make everything else they do feel downright honest by comparison.

This makes me wish Larry Flynt would register "Clean & Decent" as a trademark for Hustler.
posted by George_Spiggott at 10:18 PM on August 11, 2003

The fact that an entity must define itself as "fair and balanced" in lieu of its very self-known controversialness militates for the argument that that entity is not at all fair and balanced. They're out for number one and now number one wants to control the words "fair" and "balanced".

Sorry. Fair and Balanced are words that are completely public domain no matter which way you rearrange the words. To take them back is to use them back at them. That's satire, criticism, anger whatever you want to call it.

I say, if Franken loses this lawsuit he incorporates the use of the word "fox" somewhere in the cover.
posted by crasspastor at 11:15 PM on August 11, 2003

I can't wait to go to my next County Fair and Balanced!

Uh, (tm) Fox Networks
posted by WolfDaddy at 12:31 AM on August 12, 2003

If Fox doesn't defend their trademark, they don't get to keep it. And, I'm sure this was filed in no small part, too, so that the execs at Fox News can placate Bill O'Reilly and make him feel appreciated.

But legal posturing and ego-smoothing aside, after the crazy FCC rulings and Ashcroft agendas we've seen in the past few months I wouldn't be surprised if Franken found himself seriously screwed and the threshold for Fair Use and satire ratcheted up several notches.
posted by stevis at 2:19 AM on August 12, 2003

Its understandable, the American Pravda doesn't want to have the problems the Soviet Pravda had.

>militates for the argument that that entity is not at all fair and balanced.

Heh, kind of like naming a paper "Truth."
posted by skallas at 2:41 AM on August 12, 2003

I love the idea of some poor Fox corporate attorney having to explain to the court that of course consumers would be likely to think that a book called Lies and the Lying Liars Who Tell Them was about Fox News, and approved by them.

This has the flav of something that's going to bite them in the ass so hard they won't be able to sit down for a very long time.

Re: Rush Limbaugh Is a Big Fat Idiot, remember that truth is an absolute affirmative defense in US libel law. Of course, Mr. Limbaugh has lost weight recently, but he was definitely fat at the time the book was published.
posted by Sidhedevil at 3:27 AM on August 12, 2003

Good take in the Wash. Post.

The use of "fair and balanced" in the title and the resemblance of the cover to the O'Reilly book is "likely to cause confusion among the public about whether Fox News has authorized or endorsed the book and about whether Franken is affiliated with FNC." They are referring, of course, to the large segment of the population that still counts with its toes.
posted by TedW at 4:02 AM on August 12, 2003

Fox makes itself (again) look dumber and dumber.
posted by Postroad at 4:14 AM on August 12, 2003

IANAL, but Fox are going to lose.

"Fair and Balanced" is a common phrase, generally applied to reporting of one kind or another. It was in widespread use before Fox Trademarked it, and it has totally legitimate use in everyday speech (or descriptions of "content.")

Fox, I have to say (as much as I despise them) will have been advised to do this by their lawyers, since a company legally has to actively defend trademarks or they lapse.

If you ask me though, it was pretty stupid to trademark the tem "fair and balanced" in the first place, or to be ABLE to trademark it.

Unless it was as an ironic parody, of course. But I don't think Fox had that intent. Hmmm... prosecution under the trades description act, anyone?

I wonder if you could trademark, "We're better than our comptitors, and our competitors agree!"
posted by Blue Stone at 4:23 AM on August 12, 2003

But the Fox News Network IS fair and balanced......
posted by Durwood at 5:03 AM on August 12, 2003

This bodes badly for the publishers of Dr Seuss.

If Fox doesn't defend their trademark, they don't get to keep it.

Sounds like an ideal outcome.
posted by rory at 5:05 AM on August 12, 2003

You know those "shut up during the movie" trailer things? A local theater has one with the tagline "Silence is Golden"...and a copyright symbol. How the hell can you copyright "Silence is Golden"???

/derail
posted by JoanArkham at 5:24 AM on August 12, 2003

I love the idea of some poor Fox corporate attorney having to explain to the court that of course consumers would be likely to think that a book called Lies and the Lying Liars Who Tell Them was about Fox News, and approved by them.

LOL

Who the hell calls someone a "parasite" in a legal document?? Clearly, the death of civility in our culture is a problem that transcends the trolls and flamers (not those flamers!) of Metafilter.
posted by rushmc at 5:44 AM on August 12, 2003

This is Spike Lee's fault.
posted by archimago at 6:10 AM on August 12, 2003

How the hell can you copyright "Silence is Golden"?

You can't. Generally, short phrases are not copyrightable This is stated in the Act itself. My guess is that someone made a mistake and put a c in the circle instead of an R. This is most likely the case since the company does have a registered mark for the slogan (Reg. No. 1737200). This actually happens quite frequently.

Parody is fair use, muthafuckas!

Maybe you are thinking of copyright and not trademark. There is no per se rule regarding trademarks and parodies. But there are many First Amendment cases related to trademarks. There is a good chance a court would never even get to the First Amendment argument in a case like this, especially since courts tend to avoid First Amend. issues like the plague. More likely is that, as Blue Stone touched on, the question would be: Is Franken's use merely descriptive of his product? This kind of use is called nomative fair use in trademark land, as opposed to classic fair use where someone is using a mark to refer to the owner of the mark.

If Fox seriously thinks its viewers will be confused by a book called Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, then Fox probably has a lower opinion of Conservatives than does Mr. Franken.

Good point. I believe this speaks directly to the underlying issue in trademark infringement: Is the purchasing public likely to be confused as to the source or sponsorship of the goods or services? For me this is analogous to the plethora of "sucks" UDRP cases. How can there be confusion between microsoft.com and microsoftsucks.com? Although not all of these have favored the "sucks" registrant.
posted by anathema at 6:10 AM on August 12, 2003

How the hell can you copyright "Silence is Golden"?
They've probably haven't copyrighted the phrase but the little movie you just saw about not talking in the movie.
posted by jmauro at 6:34 AM on August 12, 2003

What I also find so interesting about this is that Fox is suing claiming that, as a trademark, they reserve the sole right to claim their news channel is "fair and balanced..." so apparently part of their legal venture is to go beyond saying that they're the only fair and balanced new channel towards legally mandating it. I'm not trying to joke here: does an alleged ownership of the phrase and limits under Fair Use mean that rival networks can't say on the air "we're a fair and balanced network?"
posted by XQUZYPHYR at 6:54 AM on August 12, 2003

And now the "controversy" is in the top slot of links on CNN.com, so things are going just peachy for Al Franken. I've never seen Fox News or Bill O'Reilly (I only get BBC and CNN news on my Murdoch SkyPerfect satellite service), so I don't understand the background of this very well, but I do remember and refer to the 1980's as the "Al Franken Decade," as he pre-emptively declared in 1979 on Saturday Night Live. Then he assigned the 1990's to his son, which wasn't so interesting. My question: Did Al Franken assign a name to the current decade?
posted by planetkyoto at 7:03 AM on August 12, 2003

It makes sense to me that FNC has to defend their trademark by suing Franken. They'll lose, but they will maintain their control of the trademark for most commercial purposes (no problem there).

But then why does the contents of the brief submitted by Fox's lawyers contain a bunch of personal attacks on Franken (incidently, they almost seem to undermine their own case by writing the Franken is, "is neither a journalist nor a television news personality."-- this implies that any trademark confusion would be impossible) ? It's like the lawyers are acting as though the dispute were personal.

Can the lawyers on MeFi explain whether this is standard practice when filing a lawsuit?
posted by deanc at 7:46 AM on August 12, 2003

What mathowie said, plus: Idiots!..........idiots and cretins! Cretins and idiots!

Mega Dittos. . . . . .

(runs and hides now)
posted by Danf at 8:00 AM on August 12, 2003

How about Franken just change it to "Balanced and fair"?
posted by kgasmart at 8:11 AM on August 12, 2003

It would be awesome if Fox only registered the phrase for use in broadcasting and neglected to register it for books. Franken could then register it for books.
posted by neuroshred at 8:12 AM on August 12, 2003

Mega Dittos® is a registered trademark of Me2 Inc.

You will be hearing from our lawyers, Mr. Danf.
posted by Blue Stone at 8:16 AM on August 12, 2003

(incidently, they almost seem to undermine their own case by writing the Franken is, "is neither a journalist nor a television news personality."-- this implies that any trademark confusion would be impossible)

They're probably afraid that Franken will be confused with Bill O'Reilly, who also manages to be neither a journalist nor a news personality. Even more confusing, he also appears to be shrill and unstable and his views also lack any serious depth or insight. It's spooky.
posted by Armitage Shanks at 8:25 AM on August 12, 2003

How the hell can you copyright "Silence is Golden"?

You can't, but it can't be trademarked. For this to happen, the mark must be distinctive and novel. The easierst way to do this is to apply a word or phrase that has nothing to do with what you're selling to the product or service. For example, Apple computers have nothing to do with apples, and Razor scooters have nothing to do with razors. Similarly, the phrase "Silence is Golden" has nothing directly to do with movie theaters, so AMC can trademark it.

The goal of trademark is not to keep everyone from using your word or phrase, but to keep your competitors from doing so and to prevent customer confusion. So any business that isn't a movie theater could use "Silence is Golden" unless there is a strong chance they would think that business was somehow affiliated with AMC (a video store specalizing in silent films, for example, might be on fairly thin ice).

So Fox is going to have to, among other things, argue that Franken is in the news business, or close enough that customers might be confused. (They would have a much better case if his name was Fox.) Additionally, their mark is weak to begin with, since "fair and balanced" is a pre-existing phrase that is often applied to news media -- not very distinctive or novel.
posted by kindall at 8:26 AM on August 12, 2003

You can't, but it can't be trademarked.

CAN be trademarked. CAN.

No wonder I am not a lawyer.
posted by kindall at 8:27 AM on August 12, 2003

"Rule two: the jury shall be picked by me!"
"Agreed. No, wait!"
"Silence!"
posted by XQUZYPHYR at 8:32 AM on August 12, 2003

Mega Dittos are big ass pants?
posted by Eekacat at 8:32 AM on August 12, 2003

Parody is fair use, muthafuckas!

Hey, I copyrighted that phrase back in 1995. You'll be hearing from my lawyers.
posted by Ty Webb at 8:43 AM on August 12, 2003

"Humorist", haha, everyone is a comedian.
posted by tomplus2 at 8:55 AM on August 12, 2003

For this to happen, the mark must be distinctive and novel.

The word "distinctive" has approximately seven different meanings within the Lanham Act and trademark law in general. A mark that is not inherently "distinctive" can nonetheless be registered if it has acquired "secondary meaning." I'll let you do your own research on how secondary meaning can be acquired and demonstrated before the Trademark Office. And we are only talking about registered marks here. By far, the most widely used marks are simply common law marks that have not been registered but are still entitled to protection under various state laws and under section 43(a) of the Lanham Act (federal law).

Kindall, "novelty" is not a requirement of trademark law, but it is one of three basic requirements for patentability. The concept does not exist for trademarks.

For example, Apple computers have nothing to do with apples, and Razor scooters have nothing to do with razors.

You are confusing concepts here. The better analogy is that you can have APPLE for banks and APPLE for computers without confusion. There are many examples of this, but you would probably be suprised how many consent agreements are signed over these issues.

The reason you could never get a registration for APPLE for apples is that the term is the generic term for the goods. Generic terms are never registrable.
posted by anathema at 9:35 AM on August 12, 2003

BTW, I agree that at the outset it looks like FAIR AND BALANCED is a pretty weak mark. Interesting to note that the registered mark has been registered for less than five years (it will be five years on 12/22/2003). For technical reasons this could be fairly important.
posted by anathema at 9:45 AM on August 12, 2003

i can't really work up any outrage for this. i think franken chose the title because it would provoke fox. if they felt they needed to defend their trademark in court, what does franken get? publicity, in media and by word of mouth. if not, it's no skin off franken's back. you can't buy this kind of publicity, and franken got it simply for naming his book. smart guy.
posted by moz at 9:49 AM on August 12, 2003

A pair of famous and amusing letters from the 1970s about cola-cola ("It's the real thing") and a book review.
posted by JanetLand at 9:51 AM on August 12, 2003

Assuming Al wanted to settle out of court (which I'm sure he wouldn't), what if he just dropped the "and"? Lies and the Lying Liars Who Tell Them: A Fair, Balanced Look at the Right seems to be just as workable.
posted by mr_crash_davis at 10:01 AM on August 12, 2003

And some people (in government) claim there are too many frivolous lawsuits tying up the courts... I'm glad this case could never be used as an argument for tort reform.
posted by infowar at 10:39 AM on August 12, 2003

The thing is, when the weasels lose in court, they should have to pay any and all court costs which they caused Franken to incur. Sometimes merely threatening legal action is sufficient to achieve your aims, given the associated costs.
posted by rushmc at 10:41 AM on August 12, 2003

Franken's book is now ranked 12th at Amazon.. Before today, it was under 50th.

Heh.
posted by s.e.b. at 10:55 AM on August 12, 2003

Surprisingly, Fox is getting less sympathy than I would've expected at Freerepublic.
posted by PinkStainlessTail at 11:00 AM on August 12, 2003

An interesting interview with Franken about media lies.
posted by jonah at 11:27 AM on August 12, 2003

I don't know why O'Reilly and Fox just doesn't give up on the whole "No Spin Zone" and "Fair and Balanced" schick and just honestly say that they have an ideological spin. Not even the fans I know are taken in.
posted by KirkJobSluder at 12:05 PM on August 12, 2003

Well, that's what makes it so weird to me in the first place, Kirk.... Fox is claiming that "a fair and balanced look at the Right" is an obvious exploitation of Fox News' trademarked slogan... so they're arguing that the average reader would find Fox News synonymous with the right-wing?

Ultimately, the entire lawsuit is meant to cleverly appeal to the claimed-nonexistant right-wing base of Fox News. I'm convinced Fox News knew damn well they can't win, and that it's not the point. The lawsuit, as proven in its text, allowed Fox to say publicly all the partisan, slanderous things that... well... opinionated people like Al Franken say. However, since it's a lawsuit and not a news report or talk show on their network, Fox appeals to the right-wing viewership via the news about this lawsuit while hiding behind the lawsuit as a means of hurling partisan invective under the guise of an unbiased credible news network.
posted by XQUZYPHYR at 1:17 PM on August 12, 2003

I think MeFi should register the phrase: "MetaDittoes".

Of course, this is a supremely arrogant act on behalf of FoxNews' parent corporation (which by the way, IS named News Corporation), but it may not be a sure loser, if they happen to get the right judges (Republican appointees selected for their hard-core ideology, or heavily beholden to their patrons) hearing the case and/or its inevitable appeal. Bush may yet get a chance to appoint a Supreme Court judge or two in the time this may take to creep its way up the legal ladder. Murdock's mouthpieces (like O'Reilly) will not give up their Big Lies unless forced to, and true defenders of Freedom of Speech know that freedom even applies to liars.
posted by wendell at 1:23 PM on August 12, 2003

Hmm. fairandbalanced.tv is still available...
posted by pzarquon at 2:02 PM on August 12, 2003

Christ on the cross, wendell. Talk about an agenda.
posted by anathema at 2:16 PM on August 12, 2003

anathema -
Appellate Court Rules Fox News Can Legally Lie
posted by stevis at 5:20 PM on August 12, 2003

Amazon.com Sales Rank: 1

Way to stick it to 'im, FOX.
posted by brookedel at 2:06 AM on August 13, 2003

In one day. From 52 to number one. Well done upper tier liberal blogosphere.

We may not be the most in number, but we are the most in paying attention. That's gotta say something to someone.
posted by crasspastor at 3:29 AM on August 13, 2003

Why is that directed at me, stevis? I hate Fox News just as much as the next stump-humping liberal MeFite.
posted by anathema at 6:40 AM on August 13, 2003

Neal Pollack has a suggestion. Here's my crappy contribution.
posted by PinkStainlessTail at 10:44 AM on August 13, 2003

From the fair and balanced FoxNews report on the case being rejected by the courrt:

A federal judge on Friday denied Fox News Channel's request for an injunction to block humorist Al Franken's new book, whose title mocks the Fox slogan "fair and balanced."

U.S. District Judge Denny Chin said the book — "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right" — is a parody protected by the First Amendment

"There are hard cases and there are easy cases," the judge said. "This is an easy case. This case is wholly without merit, both factually and legally."

"In addition to thanking my own lawyers," Franken said, "I'd like to thank Fox's lawyers for filing one of the stupidest briefs I've ever seen in my life."

"It is ironic that a media company, which should be protecting the First Amendment, is seeking to undermine it," Chin said.

posted by kirkaracha at 3:51 PM on August 22, 2003

Heh.

.
posted by jaronson at 5:02 PM on August 22, 2003