Franken wins, Fox is mocked

That didn't take long.

A federal judge on Friday slammed Fox News' trademark infringement lawsuit against Al Franken and his publisher Penguin Group and refused to stop the sale of the liberal satirist's new book that pokes fun at the network and host Bill O'Reilly.

Fox charged that Franken had violated its trademarked phrase "fair and balanced" by including it on the cover of his book entitled "Lies and the Lying Liars Who Tell Them." Fox is owned by News Corp. and Penguin is a unit of Pearson . The book went on sale on Thursday.

"There are hard cases and there are easy cases. This is an easy case," said U.S. District Judge Denny Chin. "This case is wholly without merit both factually and legally."

"Parody is a form of artistic expression protected by the First Amendment. The keystone to parody is imitation. Mr. Franken is clearly mocking Fox," said Chin.

The judge said he thought it ironic that a media company that should be fighting to protect free speech would seek to undermine the First Amendment. He also said he thought the "fair and balanced" trademark is weak because the phrase is used so often.

This isn't over, btw. This hearing was simply to slap a temporary injunction on the sale of the book. Fox can still choose to litigate the case on its merits, though the judge's decision pretty much makes that unlikely. And Penguin's lawyers can still go after Fox for a frivolous lawsuit and recover attorney fees (which would be lots of fun).

Interestingly enough, Penguin had Floyd Abrams on the case, the premier First Amendment lawyer in the land. Fox, on the other hand, was apparently represented by a lawyer with the intellect of a chimp:

During arguments held before his ruling, Chin asked Fox lawyer Dorie Hansworth if she really believed that the cover was confusing.

"To me, it's quite ambiguous as to what the message is," she said. "It's a deadly serious cover ... This is much too subtle to be considered a parody."

Luckily for Ms. Dorie Hansworth, Abrams and the judge were there to hold her hand and helpfully explain to her what the cover meant:

Floyd Abrams, a lawyer representing Penguin and Franken, strongly disagreed.

"There is no way that any person not completely dense would be confused by this cover to think that Fox was accusing O'Reilly of being a liar," he said.

Chin, siding with Abrams, pointed out that the word "Lies" in the title is printed in large red letters next to a photo of O'Reilly. He said that there was no likelihood that book buyers would think that the sponsor is Fox or O'Reilly.

Franken needs to send Fox a big 'thank you' card. No way he could've bought this kind of publicity. I'm sure he's praying for Fox to continue the case.

Posted August 22, 2003 05:46 PM | Comments (68)