Fox, fair and balanced
Fox News loses attempt to block satirist's book
From Phil Hirschkorn CNN - Saturday, August 23, 2003 - original
Judge: Cover creates no confusion over origin, sponsorship
Fox sought to halt distribution of author-comedian Al Franken's book.
NEW YORK (CNN) -- Saying "This is an easy case," a federal judge ruled Friday against Fox News in its lawsuit asserting that a book by liberal satirist Al Franken violates its trademarked slogan, "fair and balanced."
Fox was seeking an injunction to halt distribution of " Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right."
Franken did not attend the hearing, but did tell CNN afterwards, "The irony upon irony of this lawsuit was great. First, Fox having the trademark 'fair and balanced' -- a network which is anything but fair and balanced. Then there's the irony of a news organization trying to suppress free speech."
U.S. District Judge Denny Chin, after listening to about half an hour of oral arguments, said the lawsuit was "wholly without merit, both factually and legally."
The 377-page book, which originally had a late September release date, went on sale Thursday. It has reassumed the No. 1 position on Amazon.com's bestseller list.
Fox objected especially to its cover, which displays the "fair and balanced" phrase in its subtitle and an unflattering photograph of the news channel's most popular host, Bill O'Reilly. It argued that the cover layout "is likely to cause confusion among consumers as to the origin and sponsorship of the book."
The judge disagreed.
"There is no likelihood of confusion as to the origin and sponsorship of the book ... or that consumers will be misled that Fox or Mr. O'Reilly are sponsors of the book," he said.
During oral arguments, Chin brought up one of O'Reilly's books, The Good, the Bad and the Completely Ridiculous in American Life as an example of a similar play on a well-known phrase -- in this case, the title of a Clint Eastwood movie, The Good, the Bad and the Ugly.
"Isn't Mr. O'Reilly doing exactly the same thing?" Chin asked.
Attorney Dori Hanswirth, representing Fox News, disagreed, saying the intent was different. She contended that Franken's book cover did not qualify as satire.
"This is much too subtle to be considered a parody," she said.
Responding to a comment by Franken that he intended the cover to be a joke, she told the judge that she thought the cover's message was "ambiguous," and called it "a deadly serious cover, and it's using the trademark of Fox News to sell itself."
Floyd Abrams, representing Franken, said that under the First Amendment, "a book is allowed to criticize a holder of a trademark and mock a trademark as well."
Abrams said the big word "lies" over the photo was a signal that the cover was "obviously tongue-in-cheek."
"There is no way a person not completely dense would be confused by this cover to think that Fox is accusing Bill O'Reilly of being a liar," he said. "There is nothing confusing about this."
As for the trademarked phrase itself, Chin said that it was "unlikely a valid trademark. ... The mark is a weak one as trademarks go."
In a written statement after the ruling, a Fox News spokeswoman said, "We respect the court's decision and we're evaluating our options."
Along with O'Reilly, still frames on Franken's book's cover also show President Bush, Vice President Dick Cheney and conservative commentator Ann Coulter in separate TV monitors, around the title's first word, Lies.
'Not good enough to be endorsed by Fox News'
Fox alleged the cover also tarnished it by association with defendant Franken.
Although Franken has appeared as a guest on Fox News Channel at least 10 times in the past five years, according to Fox, he is not affiliated with the network, which, in court papers, called his commentary "not good enough to be endorsed by Fox News."
Franken, who won four Emmy awards for his work on "Saturday Night Live," is the author of four previous books, including the recent bestseller, Rush Limbaugh is a Big Fat Idiot.
Presale orders of Lies first drove it to the top sales position at the online bookseller Amazon.com.
Franken describes the Fox News Channel as "obviously slanted to the right" and its chairman, former Nixon-Reagan-Bush strategist Roger Ailes, as "a cynical Republican ideologue with no regard for fairness and balance." A chapter focused on O'Reilly is subtitled, "Lying, Splotchy Bully."
Fox said the U.S. Patent and Trademark Office granted it a trademark for "fair and balanced" in December 1998, two years after the cable channel's launch.
Franken's attorneys said, trademark or not, the phrase "fair and balanced" is as old as journalism itself, is a principle taught in journalism classes and is "common vocabulary of the news media dating back well before Fox even existed."
In addition, Franken's attorneys say, the Fox motion is too late, because books are already in stores.
The network first learned of the cover at a book fair in May but did not seek court action for 10 weeks.
"Fox has ... sat on its supposed rights for too long," the author's attorneys say in court papers. "Fox has simply failed to act with the promptness required of a litigant seeking the extraordinary relief demanded here."
Franken's publisher has shipped 270,000 copies to stores and has ordered a second printing of 90,000 copies, spokeswoman Lisa Johnson said.