More F&B: News as advertising

More F&B: News as advertising
: On the fair-and-balanced suit by FoxNews against Al Franken, Glenn Reynolds says:

Of course, as several people have pointed out, this “dumb” suit has gotten both Fox and Franken a lot of free publicity. Well, that’s the media biz, these days.

Yup, it’s how you use news to get publicity.

You can file suit and get a story.

Or you can run for office and get a story (see Terry Tate, state house linebacker).

What’s next: petty crimes for the sake of publicity?

: Yale Law School’s Jack Balkin also weighs in on FoxNews v. Franken. I think he’s overintellectualizing what is at best a publicity stunt and at worst a Bill O’Reilly hissy fit:

If Franken may not use the expression “fair and balanced” in a book to accuse Fox News of failing to be “fair and balanced,” there is something seriously wrong with trademark law under our First Amendment. And if Fox can get an injunction preventing the sale of the book, we can be sure that the expansion of intellectual property rights has gone too far.

So far, so good: If a court allows this to happen, then that would be a travesty. I doubt any sane court would enjoin Franken.

Balkin keeps a-chuggin’ down this track:

The most troubling aspect of the lawsuit politically is its attempt to harass a political opponent through the use of intellectual property laws. Fox News v. Franken is merely one episode in a much larger conflict between freedom of speech and intellectual property. Trademark, like copyright, has now become a general purpose device for private parties to use the state to suppress speech they do not like. And they can suppress the speech of others not merely to protect their legitimate economic interests but because of aesthetic and political disagreements as well.

A bit stretched, a tad paranoid, eh? I don’t see a trend here (yet). But I’m sure Larry Lessig will see boogeyman lurking nonetheless; it’s another convenient opportunity to try to paint copyright as a bad thing.

: One other very odd piece of this: You’d think that Fox — owner of Harper Collins — would not want to set precedent in prior restraint of the distribution of books, both as a matter of free speech and as a matter of free trade.

: Neal Pollack declares Friday, Aug. 15 Fair and Balanced day, urging all bloggers to use the words on their websites.

So we are all Al Franken. We are all curly-haired and paunchy. [via RFB]

: Drudge says that, indeed, this is just a Bill O’Reilly hissyfit. [via Michele]

8 responses to “More F&B: News as advertising”

  1. RJGatorEsq Avatar
    RJGatorEsq

    “Trademark, like copyright, has now become a general purpose device for private parties to use the state to suppress speech they do not like.”
    That comment is nonsense.
    Franken wanted to tweak Fox when he misappropriated Fox News’s tag line, “Fair and Balanced.” He knew there would be trouble. He went looking for it, and he got it.
    This is not “suppression” of speech: if Franken deleted the line from the title or subtitle, Fox’s case would be moot, and courts in this situation would not decide a moot case. Franken could distribute his book sans the Fox tag line, and that would be that.

  2. clay Avatar

    What is this “misappropriation”? Anyone who would even bother to look at the book would not get past the phrase without thinking of its ironic relationship to Fox’s slogan. It’s satirical. (I feel ridiculous pointing that out, it’s so obvious.) Can anyone possibly believe that Al Franken put the slogan on the cover of his book because he wanted to confuse the public into buying what they thought was a Fox product? Is that not the heart of the issue? Maybe someone can put an authoritative definition of “misappropriation” here.

  3. Harry Avatar

    RJGator — Hear, hear.

  4. Malloy Avatar

    The purpose of the lawsuit is to intimidate people who might cross Rupert Murdoch by forcing them to spend money on lawyers defending themselves. The suit hasn’t got a prayer. If I were Franken, I would counterclaim for abuse of process. The complaint, on its face, is preposterous. It’s not trying to state a claim for which relief can be granted, it’s trying to score PR points and give some psychological pleasure to the masters of Fox and their pet gasbag, O’Reilly.
    If Franken forms a legal defense fund, I’m contributing. I’ll certainly buy the book now.
    And Murdoch ought to quit trying to bully Americans. He’s picking on the wrong kind of people.

  5. Jeremy Avatar

    I actually thought things like this were the reason for trademark law.
    He’s using the Fox News slogan to sell a book about Fox News.
    Now, if it was a parody of the Fox News slogan, that would be okay. But he’s actually using their little phrase.

  6. tom scott Avatar
    tom scott

    If Al Franken can use the “Fair and Balanced” how about TNN’s use of “SPIKE?
    Maybe this lawsuit will give Fox a “spike” in their ratings.

  7. xian Avatar

    It’s a booktitle, not a trademark. Book titles are traditionally uncopyrightable and very free. Not only that but trademark law permits fair use, parody, and commentary.

  8. RJGatorEsq Avatar
    RJGatorEsq

    Malloy says, ” The suit hasn’t got a prayer.”
    Just out of curiosity, Malloy, which bars are you a member of? I mean, you seem pretty certain that Fox has no legal case here, so you must, in order to have such a conclusory opinion, be an attorney….
    RJGatorEsq
    The Florida Bar
    State Bar of Georgia
    U.S. District Courts for the Northern, Middle, and Southern Districts of Florida
    U.S. Court of Appeals for the 11th Circuit
    Counsellor the Supreme Court of the U.S.