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Fox vs. Franken
Network's legal snit over satire book jabbing right
How obvious does a joke need to be before a reasonable person could be expected to understand it as satire?
That may be the central issue today as a federal court judge hears arguments in Fox News Channel’s lawsuit against comedian Al Franken for trademark infringement for his latest book chiding the conservative movement.
Franken’s lawyers will argue that the satirical flourish in his book’s title, "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right," is pretty darned obvious and that as satire the book cannot be held in violation of trademark law.
In that regard, their strongest argument may be found in the title of a chapter on Fox News: "They Distort, We Deride or We Retort, They Have Lied or They Purport, We Decry or They Are Short, We Have Plied or Smorty Smort, Blort Deblort."
Fox will argue that consumers will be confused by the book, whose cover design imitates that of FNC star Bill O’Reilly’s bestsellers, and by its use of the trademarked Fox News slogan "fair and balanced."
In suit papers full of personal jabs at Franken and his professional reputation, the network asks the court to halt distribution of the book.
It’s a bit late for that. The book went on sale yesterday, a month ahead of its scheduled debut date. Franken’s publisher, Dutton, pushed the book out early not so much to confound Fox’s suit as to take advantage of the free publicity the suit has produced.
At one point, "Lies" was No. 1 on Amazon’s bestsellers list based on advance sales alone.
Dutton has already ordered a second printing of 50,000 copies to add to the 270,000 it has shipped to stores.
Franken’s lawyers will argue that his right to satirize Fox News in its own language is guaranteed by the First Amendment, and that his mode of satire is far from being so subtle as to confuse consumers and diminish Fox’s trademark.
They will also argue that Fox, which got its first glimpse of the book’s cover nearly three months ago, should have taken action earlier if it wanted to forestall publication.
Finally, they will claim that the phrase "fair and balanced" is in common use among journalists and should not be the exclusive property of Fox.
For all the on-air aggressiveness of its commentators, Fox News is developing a reputation for being quite thin-skinned when it comes to the satirical broadsides of its critics.
In June, it filed a trademark infringement suit against a web site that was selling T-shirts bearing the slogans "Faux News" and "O'Reilly Youth." The suit wasn't successful in shutting down the site, www.agitproperties.com, but it did inflate demand for the T-shirts.
The judge overseeing the case, U.S. District Judge Denny Chin, is no stranger to high-profile media trials. Last year he adjudicated the dispute over Penthouse magazine’s false claim to have published nude pictures of tennis star Anna Kournikova.
August 22, 2003© 20
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