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August 28, 2003

Some last speculations
Posted by Teresa at 04:15 PM *

I’ve been looking at Fox’s original filing in the Fox/Franken lawsuit, and thinking about Fox’s timing and intentions. (Background: see posts of August 11th, 22nd, 23rd, and 25th.) Fox had known about the book clear back at the end of May, long before they brought suit. Waiting ten weeks is not what you do when you’re worried about defending a trademark.

Franken’s Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right was supposed to be a September release. In the lawsuit, Fox quite shamelessly asserted that it would be no hardship for Franken and his publishers to stop using the original cover, and to take “fair and balanced” out of the title.

That couldn’t be farther from the truth, and I’m sure Fox knew it. Franken’s book had long since been sold to booksellers under that title. The cover’s all over online and hardcopy catalogues. The changes Fox demanded would at minimum have been a huge headache. Making them—if it were even possible to do so without completely disrupting the book and its publication process, which is not a foregone conclusion—would have done serious damage to the book’s momentum. Also, if there’d been a court-ordered change in the book’s cover, title, and contents, no one who’s even slightly connected with the book could have missed noticing what was happening.

Waiting until it’s difficult-to-impossible to make changes in a book, and then trying to legally force changes to be made at the point of the book’s greatest public exposure, isn’t how you defend a trademark. It’s how you count coup.

But there’s more. The lawsuit—I have a copy of the original filing right here—called for Franken and his publishers to not use the “fair and balanced” trademark; nor use any other logo, trade name, or trademark which might be interpreted as having a connection with Fox News; nor further infringe upon or dilute Fox’s trademark; nor unfairly compete with Fox News; nor use any photographs of “…Fox News’ on-air talent, including, without limitation, O’Reilly on the cover of or in any advertising or promotional materials for the promotion of the book.”

If you think about that a moment, I’m sure you’ll notice that very little of it is necessary to defend Fox’s “fair and balanced” pseudo-trademark. I speculate that if the lawsuit had gone the way Fox fantasized, O’Reilly would have claimed that Franken had called him a liar, but that a court had forced Franken to stop doing so, and to take his picture off the book—as though the court had ruled on the content of Franken’s book, and not just Fox’s right to a trademarked phrase which happened to appear in the title.

Furthermore, that claim could have been extended to the rest of Fox’s amusingly-named “on-air talent”, giving them a certain immunity to Al Franken’s attentions. I speculate that Fox was planning to misrepresent that circumstance as well. It’s even possible that they would have claimed that the court had upheld some of the truly bizarre remarks in the lawsuit about how Franken is “shrill”, “increasingly unfunny”, and not nearly as prominent as Fox’s lineup of stars. I can’t see any other reason for those remarks, unless Bill O’Reilly is so unbalanced that he insisted on having them appear there.

I’m not going to say that I have to wonder what Fox thought they were doing with this lawsuit. Their timing makes it impossible for me to believe in their candor. When you wait until you’re that close to the book’s release date to interdict a book’s cover, title, and possibly some of its core content, you’re making it impossible to fix up the book in time for it to be published on schedule.

Fox didn’t bring that lawsuit to defend their commercial rights. The trademark thing was just their excuse. Their real problem with Franken’s book is that Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right is a devastatingly readable demolition of Fox and its brand of journalism. They didn’t want to see it published under any title.

Comments on Some last speculations:
#1 ::: Tina ::: (view all by) ::: August 28, 2003, 08:08 PM:

Wait. Fox practices journalism?

Oh, no, wait. I get it. By 'brand of journalism', what you mean is 'generic, black-and-white label, imitation journalism'.

#2 ::: Jeremy Leader ::: (view all by) ::: August 28, 2003, 08:15 PM:

Part of me thinks that removing O'Reilly's photo from the cover was one of the key objectives. Or rather, that was O'Reilly's key objective; Fox was trying to keep the talent happy, and shredding a critic's book was a bonus.

But you're right, Teresa, the timing suggests they were trying to throw a big monkey wrench into the works when it would do the maximum damage. If you want changes made, you complain as early as possible; if you just want to screw things up, you wait until it's _almost_ too late.

I'm curious what sort of letters, if any, Fox's lawyers sent to Penguin before bringing suit. Isn't the normal process (when time permits) to notify the other party of the issue, and demand they make the appropriate changes or face a suit?

#3 ::: Stefan Jones ::: (view all by) ::: August 28, 2003, 09:28 PM:

Then there's the Evil Franken conspiracy:

Think about it. Things turned out *so well* for Franken that the way things unfolded *couldn't be an accident.*

Fox deliberately constructed a case that it couldn't win, and that would give Franken's book a sales boost.

Because Franken *had something* on them. Something that, if made public, would deal them even worse damage.

Like photos of O'Reilly in bed with an overripe melon and an underaged borzoi.

#4 ::: C.E. Petit ::: (view all by) ::: August 28, 2003, 10:05 PM:

Gee, you don't think that Fox News consulted anyone at HarperCollins about the appropriate timing to cause the most potential inconvenience, do you? Just because St. Rupert owns them both?

Yes, this is in fact an implication of bad faith. Go ahead, Br'er Fox, but don' t'row me in dat dere courtroom! (Sorry, I couldn't make it come out in a German "accent".)

#5 ::: the (still fair and balanced) talking dog ::: (view all by) ::: August 28, 2003, 10:30 PM:

I guess Fox might have been motivated to salvage some Wee Rapport. You decide.

Are you questioning the purity of the motives of a true and loyal American like Rupert Murdoch? Oh wait...

#6 ::: Yonmei ::: (view all by) ::: August 29, 2003, 05:03 AM:

There's a review of the book and the case in the Independent this morning, that strongly suggests the motivation was Bill O'Reilly's sensitivity to criticism.

#7 ::: Yonmei ::: (view all by) ::: August 29, 2003, 05:44 AM:

Doing a news.google on "fair and balanced" brings up some very entertaining stuff - including Bill O'Reilly's 16th August column defending Fox News against Al Franken. (The next column, 23 August, is all about the Calfornia "energy crisis". I have no idea how far in advance O'Reilly writes his columns, but I wonder what his reaction will be to having the suit laughed out of court?)

#8 ::: Peter Harkins ::: (view all by) ::: August 29, 2003, 07:52 AM:

Any idea where/when we can read the court record? From the couple of quotes in the Independent article linked above, it'll make for great reading.

#9 ::: Claude Muncey ::: (view all by) ::: August 29, 2003, 08:23 AM:

Teresa, you aren't the only one who noticed the timing. From yesterdays interview of Franken by Laura McClure in Salon:

Q:What was your first reaction upon hearing about the suit? Were you surprised?

A:I was surprised because they had first threatened to sue about two weeks after the Book Expo dust-up with what's his name, and then they didn't do anything, and the News Corp. [which owns Fox] owns Harper Collins, so they know how books work. So they waited until they knew we were printing books. That surprised me, because on the one hand that seems like a smart thing to do, because that punishes us and in a way they prevail, but it hurts their case, because that's just sitting on your hands. Especially if you're trying to get a preliminary injunction, you can't do that.

#10 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 29, 2003, 09:40 AM:

Peter, the document must be on line somewhere, but I have it in hardcopy.

Claude: I'd wondered whether the presses were running yet when Fox filed its lawsuit. Going by the judge's remarks to Fox about how long they'd taken to file their suit after finding out about Franken's book, I'd say he spotted the implications and knew what they were up to.

From this, we may judge that Bill O'Reilly and the Fox News Network aren't nearly as deft as Karl Rove is at killing an undesirable book just as it's being published.

#11 ::: Kellie ::: (view all by) ::: August 29, 2003, 10:28 AM:

Here's the online text of the complaint Fox filed. I haven't gone looking for any court transcripts yet. Paragraph 77 is the one where Fox decides to go off on Franken. Although you can also find some amusing and thinly vieled potshots in paragraph 11 where they describe Franken's career. Paragraph 39 provides evidence that the impetus for the complaint is more than just O'Reilly's ruffled feathers.

Jeremy, the complaint also discusses a couple letters Fox sent to Penguin and their (lack of) response. (paragraph 41)

#12 ::: Robert L ::: (view all by) ::: August 29, 2003, 01:15 PM:

Just saw copies of the book at Barnes and Noble last night...it was a good feeling.

#13 ::: John Farrell ::: (view all by) ::: August 29, 2003, 01:19 PM:

Yonmei,
Yeah, according to the Washington Post (here), Blowhard Bill O'Reilly threw hissy fits and insisted they go ahead....

#14 ::: Jon Hansen ::: (view all by) ::: August 29, 2003, 02:56 PM:

I've now got my copy! Huzzah! Sadly, my back was turned after I brought it home and now my wife is reading it. Sniff.

She kept giggling last night while she was reading it. Her report so far: "It's funny. And depressing, because they've been getting away with all this crap."

#15 ::: Fair and Balanced Beerzie ::: (view all by) ::: August 29, 2003, 03:32 PM:

A botched job by our friends at Fox. They generated a ton of publicity for Franken. Now if we could get Bush to do something similar...

#16 ::: Tom Whitmore ::: (view all by) ::: September 01, 2003, 01:46 PM:

(Chicken) Bookbookbookbookbook!
(Frog) Readit.

(Should I put a spoiler warning on that?)

The book is a very quick read, unfortunately -- mostly because what he documents is so egregious. And Franken really isn't afraid to show himself in a bad light, which seems quite different from his detractors.

I'm waiting to see how much stock in the publisher of this book Fox News owns....

Cheers,
Tom, way too cynical this morning

#17 ::: Debbie Notkin ::: (view all by) ::: September 02, 2003, 02:56 PM:

"If you think about that a moment, I92m sure you92ll notice that very little of it is necessary to defend Fox92s 93fair and balanced94 pseudo-trademark."

Sadly, speaking from my current post as a high-level "publishing paralegal," this is how these lawsuits are written. This is how law, including publishing law, is practiced in America in the 2000s and, IMHO, nothing can be inferred from it except that Fox has lawyers.

Ask for everything. Demand everything. Cast your net as widely as possible. Don't narrow your argument to your actual cause of concern; you might miss something. Don't, for heaven's sake, try to figure out where the common meeting ground might be. Settlements are about money, not solutions.

(I do feel the need to say that I work with a magnificent and extraordinarily experienced publishing lawyer who is Not Like The Above at all--but nonetheless that's the prevailing culture.)

#18 ::: Adam Lipkin ::: (view all by) ::: September 03, 2003, 11:32 AM:

From the interview quote above:

"...after the Book Expo dust-up with what's his name,..."

Subtlely vicious comedy, thy name is Franken.

When I read that Franken's chapter on O'Reilly is entitled "Lying, Splotchy Bully", I laughed uncontrollably for about ten minutes. Unsubtlely vicious comedy, thy name is Franken.

I'm going to have to get this book.

#19 ::: Patrick Nielsen Hayden ::: (view all by) ::: October 19, 2003, 02:57 PM:

" I'm waiting to see how much stock in the publisher of this book Fox News owns....

Cheers,
Tom, way too cynical this morning"

Yes, you were way too cynical that morning. Franken's book was published by Dutton, an imprint of Viking Penguin, part of the Pearson group, which is certainly not even partly owned by Rupert Murdoch.

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