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.