Back to previous post: Power survey

Go to Making Light's front page.

Forward to next post: Revolutionary allegory

Subscribe (via RSS) to this post's comment thread. (What does this mean? Here's a quick introduction.)

August 22, 2003

Federal judge denies Fox’s request for injunction
Posted by Teresa at 06:50 PM *

You might want to hang on to this Associated Press text. I’ve already seen three different trimmed versions of it. Fox’s own version is severely trimmed.

Neener, neener.

Here goes:
NEW YORK 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.”

The network had argued the subtitle to Franken’s book could trick some consumers into believing the book is associated with Fox. Fox, which trademarked “Fair and Balanced” as a slogan in 1998, was seeking an injunction barring publisher Penguin Group from using the cover or any other promotion including those words.

Franken called the ruling a victory for the First Amendment and satirists everywhere “even bad satirists.”

“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.”

The ruling opened the door for lawyers for Penguin and Franken to file a motion to dismiss the suit altogether. In addition to denying the injunction, the judge took direct aim at Fox for bringing the case.

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

The judge also said the “Fair and Balanced” trademark itself is weak, considering those words are used so frequently “in the context of the public marketplace.”

The lawsuit described Franken as a “C-level political commentator” and said “he appears to be shrill and unstable” and his “views lack any serious depth or insight.”

Franken’s book went on sale nationally Thursday, moved up from its September rollout date because of publicity from the lawsuit. Penguin added 50,000 copies to the original run of 270,000 after the suit was filed.
(Patrick and I whistled when we saw that paragraph.)
On Friday, the book was listed at No. 2 on Amazon.com’s best-seller list, behind The South Beach Diet.

Fox spokesman Paul Schur said the network was considering its options, including appealing the judge’s denial of an injunction.

“We don’t care if it’s Al Franken, Al Lewis or Weird Al Yankovic,” he said. “We’re here to protect our trademark and our talent.”

Al Lewis played Grandpa on “The Munsters.”

The book’s cover features Franken standing in front of a television monitor with screens of President Bush, Vice President Dick Cheney, conservative pundit Ann Coulter and Fox host Bill O’Reilly.

The word “Lies,” in the title, appears in large print over the four screens.
Is Dennis Slater still around? Someone should e-mail him a copy of the story.

Addendum: PiscusFiche has given us the Reuters version. It’s nice to see that it confirms the judge’s line about hard cases and easy cases, which is one of the things I’ve seen snipped in second-wave AP versions.

(see also posts of 11 August 03, 23 August 03.)

Comments on Federal judge denies Fox's request for injunction:
#1 ::: Stefan Jones ::: (view all by) ::: August 22, 2003, 06:59 PM:

Whooo! Big win! You go there Al!

Al Franken could get even more publicity off of this by treating Weird Al to a meal at "Grandpa's," Al Lewis's Manhattan greasy spoon.

Lewis is an old lefty and would probably get a kick out of that.

#2 ::: Claude Muncey ::: (view all by) ::: August 22, 2003, 07:06 PM:

I like Kevin Drum's line: A federal judge told Fox News today not to let the courthouse door hit them on their corporate ass when they slink out of the building.

From what I can see the judge did everything but blow them a razzberry . . .

#3 ::: Claude Muncey ::: (view all by) ::: August 22, 2003, 07:12 PM:

Newday's version has even more after the end of your text:

Fox was seeking an injunction to bar Penguin from distributing copies of the book with its current cover, or any cover that featured the words "fair and balanced." The lawsuit described Franken as a "C-level political commentator" who is "increasingly unfunny." It suggested he was "intoxicated or deranged" when he confronted a table of Fox personalities at a correspondents' dinner in April.
"He is not a well-respected voice in American politics; rather, he appears to be shrill and unstable," the suit said. "His views lack any serious depth or insight."
By contrast, Fox took pains to promote its own programming in the suit, citing a subscriber base of 80 million viewers and repeatedly noting the network is the top ratings winner among cable news channels.

I love that last paragraph -- so fair and balanced.

#4 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 22, 2003, 07:16 PM:

Cute. "Everybody watches us, so we must be right about this point of law." At least they got some advertising out of it.

#5 ::: David Moles ::: (view all by) ::: August 22, 2003, 07:37 PM:

Are we sure Rupert Murdoch doesn’t own Penguin?

It occurs to me that public discourse might actually be a little better off if the media conglomerates’ different subsidiaries would start cross-attacking each other to generate publicity instead of cross-promoting each other. Not much better off, but a little.

(Come to think of it, I’m kind of surprised William Gibson hasn’t already used that idea.)

#6 ::: Rich McAllister ::: (view all by) ::: August 22, 2003, 07:39 PM:

I read the whole Fox complaint. The bit about their ratings was actually one of the few sensible things in it -- they were there to try to establish that "Fair and Balanced" was really widely known and used as a Fox trademark and so there was real value in it which Franken and Penguin were trying to appropriate.

If anybody finds the full text of the judge's ruling please let me know.

#7 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 22, 2003, 08:04 PM:

Rich, the trouble with that argument was that just about everyone I know was shocked to learn that Fox had laid claim to "fair & balanced". That puts the kibosh on the idea that their use of it is widely known.

#8 ::: Claude Muncey ::: (view all by) ::: August 22, 2003, 08:53 PM:

David's comment pushed me over to Google -- hmm Penguin owned by Pearson plc (and yes Teresa, I am sure that you knew that already, but I didn't) which also owns the Financial Times group. Nice combination.

#9 ::: Lis Riba ::: (view all by) ::: August 22, 2003, 09:11 PM:

Fox's version was credited to AP, but included some anti-Franken lines that I didn't see in the original AP article (though from Claude Muncey's comment, I see that Newsday also added that paragraph -- is Newsday owned by Rupert Murdoch by any chance?)

#10 ::: Kate Nepveu ::: (view all by) ::: August 22, 2003, 09:49 PM:

I haven't seen the decision online yet, but I'd watch this page:

http://www.nysd.uscourts.gov/RulingsOfInterest.htm

and well as Findlaw

http://news.findlaw.com/legalnews/documents/

The complaint on Findlaw was filed in state court; I assume the defendants removed it to federal court?

#11 ::: Lis Riba ::: (view all by) ::: August 22, 2003, 11:05 PM:

I know that it was moved from state to federal courts sometime late last week or early this week; I don't know by whom. I think partly because it was a more national issue.

#12 ::: Alan Bostick ::: (view all by) ::: August 23, 2003, 02:43 AM:

Read The New York Times' coverage.

Fox news was laughed out of court.

Literally.

#13 ::: Kip W ::: (view all by) ::: August 23, 2003, 08:00 AM:

Looks like "Dumb and Dumber" might be a good fallback slogan for them. Maybe the movie people could sue them and increase their viewership... at least among that particular coveted demographic.

#14 ::: Kip W ::: (view all by) ::: August 23, 2003, 08:08 AM:

The NY Times article is great; thanks, Alan. Looks like the decision to sue was really, really stupid, whether they were backed by Dennis Slater, Dennis Miller, or Dennis the Menace, in my fair and balanced opinion.

For messing with satire, they should have been stepped on outside the courthouse by a huge foot from an Italian painting, with a loud squelching noise. Nobody expected that!

#16 ::: marc ::: (view all by) ::: August 23, 2003, 11:03 AM:

http://www.kansascity.com/mld/kansascity/entertainment/6597319.htm
has the story with an even better closing:

9Posted on Sat, Aug. 23, 200399
Fox's bid to block Franken book is denied
ERIN McCLAM
Associated Press

NEW YORK - Calling it an easy case, a judge rejected Fox News Channel's bid to block liberal humorist Al Franken's new book, whose cover 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 Friday in a Manhattan courtroom. "This is an easy case. This case is wholly without merit, both factually and legally."

The network had argued the book's cover, which features the word "Lies" over images of Fox prime-time host Bill O'Reilly and conservative pundit Ann Coulter, could trick some consumers into believing the book was associated with Fox.

Franken called the ruling a victory for the First Amendment and satirists everywhere - "even bad satirists."

He also said he was grateful for the publicity: publisher Penguin Group added 50,000 copies to the original run of 270,000 after Fox filed suit, and rolled out the book Thursday instead of its planned September release date.

"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."

Fox trademarked "Fair and Balanced" as a slogan in 1998. It was seeking an injunction barring Penguin Group from using the cover or any other promotion including those words.

On Friday, the book was listed at No. 2 on Amazon.com's best seller list, behind "The South Beach Diet."

Fox spokesman Paul Schur said the network was considering its options.

"We don't care if it's Al Franken, Al Lewis or Weird Al Yankovic," he said. "We're here to protect our trademark and our talent."

The judge also took direct aim at Fox for bringing the case and criticized the "fair and balanced" trademark itself as weak because the words are used frequently in what the judge called "the public marketplace."

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

In court, Fox sought to convince the judge Franken was harming the network by using its slogan to sell books. Fox lawyers said it was not clear to consumers that the book was a parody or joke.

"It's a deadly serious cover," Fox lawyer Dori Hanswirth said. "And it's using the trademark of Fox News to sell itself."

The judge pointed out the book cover also features pictures of President Bush and Vice President Dick Cheney.

"Is someone going to think they are affiliated with Fox?" Chin said, to laughter in the courtroom.

#17 ::: Jon Hansen ::: (view all by) ::: August 23, 2003, 11:48 AM:

Lis, NewsDay is owned by the Chicago Tribune, which is run by Dennis Fitzsimmons.

#18 ::: Chad Orzel ::: (view all by) ::: August 24, 2003, 08:38 AM:

I keep meaning to comment on this, but new-doggie things have kept me a little too busy. She's calmed down enough for a resumption of almost regular blogrolling, so here's my comment, a little bit late:

Rich, the trouble with that argument was that just about everyone I know was shocked to learn that Fox had laid claim to "fair & balanced". That puts the kibosh on the idea that their use of it is widely known.

You do say "just about," but let me add myself to the short list of the unsurprised. I knew that "Fair & Balanced" was a Fox News tagline (mostly by way of liberal bloggers quoting Fox's more egregious distortions and following them with "'Fair & Balanced,' my ass..." or words to that effect).

Well, OK, I was slightly surprised to hear that they had officially trademarked it, but only a tiny bit, given the many and manifest idiocies I've seen perpetrated under intellectual property law. It was always obvious to me, though, that Franken was riffing off Fox's tagline.

Would I be likely to confuse this riffing with a Fox endorsement of Franken's book? No, but then I'm smarter than the average cabbage.

Choose:
Smaller type (our default)
Larger type
Even larger type, with serifs

Dire legal notice
Making Light copyright 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012 by Patrick & Teresa Nielsen Hayden. All rights reserved.