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Judge Denies Fox News Suit to Block Book Title

August 23, 2003|Paul Lieberman | Times Staff Writer

NEW YORK — A federal judge Friday rejected a bid by Fox News Channel to block comedian Al Franken from using its trademarked "fair and balanced" slogan in a new book that ridicules the network and its star commentator, Bill O'Reilly.

"It is ironic that a media company that should be seeking to protect the 1st Amendment is seeking to undermine it," said U.S. District Judge Denny Chin in denying Fox's request for a preliminary injunction.

Chin sharply criticized the network for claiming that the title of Franken's best-selling book -- "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right" -- might mislead the public into believing that Fox or O'Reilly had endorsed it.

Declaring that the book's use of Fox's favorite phrase was obviously a parody, the judge said, "There are hard cases and there are easy cases. This is an easy case. The case is wholly without merit both factually and legally."

The judge also called "weak" the network's trademark on the term "fair and balanced," noting that those words are "used so frequently."

"I can't accept that that phrase can be plucked out of the marketplace ... of ideas," Chin said.

The judge's ruling, which followed brief oral arguments, came on the day that Franken's latest attack on conservative pundits officially reached bookstores. The book was already listed Friday atop the nonfiction sales list of, the online bookseller.

The publisher, the Penguin Group USA's Dutton division, had planned to begin selling the book in late September but speeded up the release because of the publicity over the legal fight between the conservative-leaning network and the liberal Franken. The publisher also increased the initial run above its planned 250,000 books.

Chin noted that O'Reilly had himself exploited a famous title -- of the movie "The Good, the Bad and the Ugly" -- in his book "The O'Reilly Factor: The Good, the Bad, and the Completely Ridiculous in American Life," which was published in 2000.

"Parody is a form of artistic expression protected by the Constitution, and the keystone of parody is imitation," the judge said.

An attorney for Fox said after the ruling that the network and its legal team would "evaluate our options" on whether to proceed with a challenge to the book, whose cover features photographs of O'Reilly, author Ann Coulter, President Bush and Vice President Dick Cheney.

"We don't care if it's Al Franken, Al Lewis or Weird Al Yankovic," said a Fox spokesman, Paul Schur. "We're here to protect our trademark and to protect our talent."

Moments later, the attorney who successfully argued the case for the publisher, 1st Amendment expert Floyd Abrams, said that if Fox "goes on with the case" he would file a counterclaim challenging the legitimacy of the network's trademark on "fair and balanced."

The language in court Friday was more civil than in Fox's lawsuit, filed Aug. 11, which derided Franken as "deranged." In its 8-inch-thick legal filing, the network said the former "Saturday Night Live" writer and performer "has recently been described as a C-level political commentator who is increasingly unfunny. He's not a well-respected voice in American politics and appears to be shrill and unstable."

Franken did not attend Friday's hearing. In a statement after the suit was filed, he said, "I'd like to thank Fox for all the publicity. As far as the personal attacks go, when I read 'intoxicated or deranged' and 'shrill and unstable' in their complaint, I thought for a moment I was a Fox commentator."

Before ruling, Chin repeatedly asked the lawyer arguing Fox's case, Dori Ann Hanswirth, whether she thought the "reasonable consumer" would believe "that Mr. O'Reilly or Fox were endorsing this book."

"There's no real message that this is a humor book ... that this is a joke," Hanswirth said.

But the judge said the title, "Lies and the Lying Liars Who Tell Them," seemed to fit that description.

"This is much too subtle to be considered a parody," the Fox lawyer answered.

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