Fox v. Franken

"Fox News Network, LLC, v. Penguin Group (USA), Inc., and Alan S. Franken" was a civil lawsuit filed in the United States District Court for the Southern District of New York on August 7, 2003. Fox News Channel, the plaintiff, sought to enjoin author and comedian Al Franken from using Fox's trademark phrase "fair and balanced" in the title of his then-forthcoming book, "". Judge Denny Chin denied Fox's motion for injunction on August 22, and the network dropped the suit three days later.

Background

Rupert Murdoch's News Corporation had founded Fox News Channel in 1996, in part to counter what it contended was systemic liberal bias on the part of other U.S. news outlets. To bolster this perception, Fox used "fair and balanced" and "we report, you decide," as slogans. Critics such as FAIR [ [http://www.fair.org/index.php?page=1067 The Most Biased Name in News - Fox News Channel's extraordinary right-wing tilt] , FAIR, July/August 2001] and Media Matters for America [ [http://mediamatters.org/items/200407140002 33 internal FOX editorial memos reviewed by MMFA reveal FOX News Channel's inner workings] , Media Matters, July 14, 2004] have accused Fox having a pervasive conservative bias; on many Web sites and blogs, "fair and balanced" became widely used as an ironic euphemism for perceived right-wing media bias on Fox and other media outlets.

On May 31, 2003, the cable network C-SPAN2 broadcast a panel discussion on political books that was taking place at BookExpo, a trade show for the book publishing industry. The panel included Franken, whose "Lies and the Lying Liars Who Tell Them" was scheduled for release in the autumn, and Fox News personality Bill O'Reilly, who was promoting his own book "Who's Looking Out For You?", which was due for release at about the same time as Franken's. Saying that he felt the need to explain why a fellow panelist's face was on the cover of a book entitled "Lies and the Lying Liars Who Tell Them," Franken told a story about O'Reilly's misstatement that his former program "Inside Edition" had won two Peabody awards, when it in fact won the Polk Award. The two then engaged in a heated confrontation, culminating in O'Reilly shouting, "Shut up! Shut up!" after Franken interrupted O'Reilly at the dais. A link to footage of the program quickly circulated among blogs, which had the effect of providing valuable publicity for Franken's upcoming book.

The lawsuit

On August 7, Fox News filed for relief in federal court. In what author and editor Richard Blow described as "an eight-inch thick legal filing," [ [http://www.tompaine.com/Archive/scontent/8656.html Fox as Hound] , TomPaine.com 08/19/2003] the network contended that it had been irreparably harmed by the publicity surrounding Franken's use of the phrase "fair and balanced" on the preliminary cover of "Lies and the Lying Liars Who Tell Them", which Fox claimed it had first become aware of following the BookExpo panel discussion in May. The filing stated that Franken had "been described as a 'C-level political commentator' who is 'increasingly unfunny'", and claimed that the comedian was "shrill and unstable" and had "appeared either intoxicated or deranged" at a press correspondents' dinner in April 2003.

In response, Franken joked that he had trademarked the word "funny", and that Fox had infringed his intellectual property rights by characterizing him as "unfunny." The publicity resulting from the lawsuit propelled Franken's then-unreleased book to the #1 sales position on Amazon.com's best-seller list.

On August 22, U.S. District Court judge Denny Chin heard arguments from attorneys representing the plaintiff and the defendant regarding Fox News's request for an injunction to prevent Franken from releasing the book with its current title. In a hearing punctuated at times by laughter from the assembled spectators, [cite web | last = Saulny | first = Susan | authorlink = | date = August 23, 2003 | url = http://www.nytimes.com/2003/08/23/nyregion/23FRAN.html?ex=1376971200&en=221c949c94e93f90&ei=5007&partner=USERLAND | title = In Courtroom, Laughter at Fox and a Victory for Al Franken | work = The New York Times | publisher = The New York Times Company | accessdate = 2005-10-05] Chin questioned Fox News attorney Dori Ann Hanswirth harshly about her contention that the phrase "fair and balanced" on the cover of "Lies and the Lying Liars Who Tell Them" was likely to confuse consumers into believing that the book was produced or endorsed by Fox News Channel. At one point he asked Hanswirth, "Do you think that the reasonable consumer would believe, seeing the word "lie" above Mr. O'Reilly's face, that Mr. O'Reilly or Fox were endorsing this book?"

Chin denied the injunction and said that the case was "wholly without merit, both factually and legally". He went on to suggest that Fox News' trademark on the phrase "fair and balanced" could be invalid. Three days later, Fox News Channel filed to drop the lawsuit.

Though O'Reilly denies it, Franken believes that the commentator goaded Fox News into suing him. In the paperback edition of his book, Franken recalls an incident at the BookExpo where O'Reilly and Fox News colleague Shepard Smith were waiting for a hotel shuttle, O'Reilly said, "I'm gonna sue him! I'm gonna sue him!"

Aftereffects

The most direct result of the suit was a windfall for Franken and his publisher, Penguin Group (USA). The book had originally been slated for release on September 22, 2003, but the publicity resulting from the suit prompted Penguin to move the release date up to August 11 and print an extra 50,000 copies, for a total of 435,000; the book was an immediate bestseller. For its part, Fox News Channel was ridiculed by commentators and bloggers on both sides of the political divide, many of whom suggested that the network had filed the suit to placate Bill O'Reilly in the wake of his run-in with Franken at the BookExpo panel.

Drawing on Judge Chin's concluding remarks, Franken suggested that Fox News adopt "wholly without merit" as its new slogan to replace the possibly invalid "fair and balanced". In a more serious response, the publishers of the left-leaning Web site AlterNet filed with the U.S. Patent and Trademark Office in December 2003 to have Fox News' trademark invalidated, calling it "notoriously misdescriptive." The USPTO denied AlterNet's application in July 2005.

In 2004, Franken began hosting a talk show, originally titled "The O'Franken Factor", on the fledgling Air America Radio network. The program's title was a jab at Bill O'Reilly's show, named "The O'Reilly Factor". Franken said that he chose the name to "annoy and bait" O'Reilly into filing another lawsuit. [ [http://www.kgw.com/business/stories/kgw_033004_biz_progressive_radio.d7edf1d8.html Business | kgw.com | News for Oregon and SW Washington ] ] Three months later, Franken changed the name to "The Al Franken Show".

References

ee also

Moron in a hurry

External links

* [http://news.findlaw.com/hdocs/docs/ip/foxpenguin80703cmp.pdf Fox News v. Penguin Group] (note: PDF link)
* [http://alfrankenweb.com/foxcourt.html AlFrankenWeb.com: Fox v. Franken Transcript]
* [http://www.booktv.org/misc/BookExpo_053103.asp Book TV.org (link to video from BookExpo panel)]
* [http://www.alfrankensense.com/ Al Franken Fan Club and Discussion Forum]