Everyone probably already knows this, but since I don’t post on weekends, I wanted to add a little something for the record.
Just in case you hadn’t heard the news, U.S. District Judge Denny Chin rejected Fox News Channel’s request for an injunction against Al Franken on Friday, clearing the way for the satirist to use of phrase “fair and balanced” on the cover of his new bestseller, Lies and the Lying Liars Who Tell Them.
“There are hard cases and there are easy cases,” Chin said. “This is an easy case. The case is wholly without merit both factually and legally.” He added, “Parody is a form of artistic expression protected by the First Amendment. The keystone to parody is imitation. Mr. Franken is clearly mocking Fox.”
Fortunately for those of us who find this case amusing, Chin’s announcement dealt only with the request for an injunction and does not mean the lawsuit is over. Fox News may still proceed with its suit alleging that Franken is violating its trademark on “fair and balanced.”
Franken and his publisher can now ask that the larger suit be dismissed, but then again, why would they? This lawsuit is the greatest thing that could have happened to them. (As I write this, Lies and the Lying Liars Who Tell Them is still #1 at Amazon.)
On Friday, Franken was giving credit where credit was due. “In addition to thanking my own lawyers, I’d like to thank Fox’s lawyers for filing one of the stupidest briefs I’ve ever seen in my life,” he said.
Fox News, in its infinite wisdom, suggested it would continue to pursue the matter, including possibly appealing Judge Chin’s ruling on its request for an injunction.
FNC spokesman Paul Schur said, “We don’t care if it’s Al Franken, Al Lewis or Weird Al Yankovic. We’re here to protect our trademark and our talent.”
Judge Chin clearly wasn’t buying this argument.
“Is it really likely someone is going to be confused as to whether Fox News or Bill O’Reilly is endorsing this book?” the judge asked.
Fox’s lawyer, Dori Ann Hanswirth, responded, “It is likely consumers could believe that.” She added, “There’s no real message that this is a book of humor or political satire. It’s a deadly serious cover and it’s using the Fox News trademark.”
Presumably, Hanswirth said all of this with a straight face. I wasn’t in the room, however, so I’m not sure if she pulled it off.
Chin seemed to find Fox News’ case irritating. “There is no likelihood of confusion. It is highly unlikely consumers are going to be misled into believing that Fox or O’Reilly are sponsors” of the book. “I don’t know if Fox is arguing that its consumers are less sophisticated than people who would buy the book.”
And in case you just can’t wait to actually buy the book that prompted all of this fun, Penguin Group, Franken’s publisher, has moved up the rollout date to take advantage of this incredibly fortuitous publicity. Whereas the book was scheduled for release in September, it’s on bookstores’ shelves now. (Penguin even added 50,000 copies to the original run of 270,000 to keep up with demand.)