Competitive Intelligence

"Unfair and Off Balance": Fox News Loses Suit Against Satirist, Franken Laughs All the Way to the Bank

Here’s an excerpt from the New York Times story from Saturday:

“If anything, the lawsuit only benefited Mr. Franken. His book had been scheduled for release in September, but the publicity caused the publisher to print an extra 50,000 copies, for a total of 435,000, and to roll the book out on Thursday. After the ruling yesterday, it moved to the No. 1 spot on the best-seller list at Amazon.com. The network filed for the injunction on August 11. Fox News Network trademarked the phrase "Fair and Balanced" in 1998 to describe its news coverage, and network lawyers claimed that Mr. Franken's use of the phrase in his book would "blur and tarnish" it. Fox also objected to the use of a picture of Bill O'Reilly, one of its prominent news personalities, on the cover, claiming that it could be mistaken as an endorsement of the book. But these arguments were met by laughter in the crowded courtroom, as Fox tried to defend its signature slogan. Part of the network's burden was to prove that Mr. Franken's use of the phrase "fair and balanced" would lead to consumer confusion. One round of laughter was prompted when Judge Chin asked, "Do you think that the reasonable consumer, seeing the word `lies' over Mr. O'Reilly's face would believe Mr. O'Reilly is endorsing this book?" The giggling continued as Dori Ann Hanswirth, a lawyer for Fox, replied, "To me, it's quite ambiguous as to what the message is here." She continued, "It does not say `parody' or `satire.'" Ms. Hanswirth said Fox's "signature slogan" was also blurred, because people who were not associated with the network, which owns the Fox News Channel, also appear on the cover with Mr. O'Reilly. Judge Chin said, "The president and the vice president are also on the cover. Is someone going to consider that they are affiliated with Fox?" The courtroom broke into laughter again. Ms. Hanswirth replied, "It's more blurring, your honor." After more discussion about what was and what was not satire, and about the definition of "parody," Judge Chin decided that Mr. Franken's work was of "artistic value." "Parody is a form of artistic expression protected by the First Amendment," he said. "The keystone to parody is imitation. In using the mark, Mr. Franken is clearly mocking Fox." He said Mr. Franken's work was "fair criticism." Judge Chin said the case was an easy one, and chided Fox for bringing its complaint to court.

UPDATE: On Monday 25 August, Fox News dropped the suit.

- Arik