Fox v. Franken
Encyclopedia
Fox News Network, LLC, v. Penguin Group (USA), Inc., and Alan S. Franken (2003 U.S. Dist. LEXIS 18693; 31 Media L. Rep. 2254) 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
Al Franken
from using Fox's trademark
phrase "fair & balanced" in the title of his then-forthcoming book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right
. Judge Denny Chin
denied Fox's motion for injunction
on August 22, and the network dropped the suit three days later.
'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 & Balanced" and "We Report. You Decide." as slogans, and obtained federal trademark registrations for each. Critics such as FAIR
and Media Matters for America
have accused Fox of having a pervasive conservative bias; on many Web sites and blog
s, "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 America
, 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 incorrect statements that his former program Inside Edition
had won two Peabody award
s, when it in fact won a Polk Award after O'Reilly left the show. The two then engaged in a heated confrontation, which culminated in O'Reilly's shouting, "Shut up! Shut up!" after Franken interrupted him. A link to footage of the program quickly circulated among blogs, which had the effect of providing valuable publicity for Franken's upcoming book.
on federal question grounds. In what author and editor Richard Blow described as "an eight-inch thick legal filing," 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. The filing cited only two sources for those quotes, one of which was a website to which Bill O'Reilly was a contributor, and the other was a website where anyone could contribute. Fox also requested a temporary restraining order
(denied August 20, 2003) to restrain the distribution of the book until their request for a preliminary injunction
was heard by the court.
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 from number 489.
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, 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!" A week later, Franken's publisher received a letter from Fox saying they were planning to sue.
(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, in December 2003, the Independent Media Institute, publishers of the Web site AlterNet
filed a petition to cancel the trademark in the U.S. Patent and Trademark Office's Trademark Trial and Appeal Board
, calling it "notoriously misdescriptive." The Institute and Fox settled in 2005, and the TTAB accordingly dismissed the petition without prejudice.
In 2004, Franken began hosting a talk show, originally titled The O'Franken Factor, on the 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. Three months later, Franken changed the name to The Al Franken Show
.
The case was documented as part of The First Amendment Project.
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
filed in the United States District Court for the Southern District of New York
United States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
on August 7, 2003. Fox News Channel
Fox News Channel
Fox News Channel , often called Fox News, is a cable and satellite television news channel owned by the Fox Entertainment Group, a subsidiary of News Corporation...
, the plaintiff, sought to enjoin
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
Al Franken
Al Franken
Alan Stuart "Al" Franken is the junior United States Senator from Minnesota. He is a member of the Minnesota Democratic-Farmer-Labor Party, which affiliates with the national Democratic Party....
from using Fox's trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
phrase "fair & balanced" in the title of his then-forthcoming book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right
Lies and the Lying Liars Who Tell Them
Lies and the Lying Liars Who Tell Them is a satirical book on American politics by comedian, political commentator and now Senator Al Franken, published in 2003 by Dutton, a subsidiary in the Penguin Group. Franken had a study group of 14 Harvard graduate students known as "TeamFranken" to help him...
. Judge Denny Chin
Denny Chin
Denny Chin is a judge on the United States Court of Appeals for the Second Circuit. He was a judge on the United States district court for the Southern District of New York before joining the federal appeals bench. President Clinton nominated Chin to the district court on March 24, 1994, and...
denied Fox's motion for injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
on August 22, and the network dropped the suit three days later.
Background
Rupert MurdochRupert Murdoch
Keith Rupert Murdoch, AC, KSG is an Australian-American business magnate. He is the founder and Chairman and CEO of , the world's second-largest media conglomerate....
's News Corporation
News Corporation
News Corporation or News Corp. is an American multinational media conglomerate. It is the world's second-largest media conglomerate as of 2011 in terms of revenue, and the world's third largest in entertainment as of 2009, although the BBC remains the world's largest broadcaster...
had founded Fox News Channel
Fox News Channel
Fox News Channel , often called Fox News, is a cable and satellite television news channel owned by the Fox Entertainment Group, a subsidiary of News Corporation...
in 1996, in part to counter what it contended was systemic liberal bias
Media bias
Media bias refers to the bias of journalists and news producers within the mass media in the selection of events and stories that are reported and how they are covered. The term "media bias" implies a pervasive or widespread bias contravening the standards of journalism, rather than the...
on the part of other U.S. news outlets. To bolster this perception, Fox used "Fair & Balanced" and "We Report. You Decide." as slogans, and obtained federal trademark registrations for each. Critics such as FAIR
Fairness and Accuracy in Reporting
Fairness & Accuracy In Reporting is a progressive media criticism organization based in New York City, founded in 1986.FAIR describes itself on its website as "the national media watch group" and defines its mission as working to "invigorate the First Amendment by advocating for greater diversity...
and Media Matters for America
Media Matters for America
Media Matters for America is a politically progressive media watchdog group which says it is "dedicated to comprehensively monitoring, analyzing, and correcting conservative misinformation in the U.S. media." Set up as a 501 non-profit organization, MMfA was founded in 2004 by journalist and...
have accused Fox of having a pervasive conservative bias; on many Web sites and blog
Blog
A blog is a type of website or part of a website supposed to be updated with new content from time to time. Blogs are usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in...
s, "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
C-SPAN
C-SPAN , an acronym for Cable-Satellite Public Affairs Network, is an American cable television network that offers coverage of federal government proceedings and other public affairs programming via its three television channels , one radio station and a group of websites that provide streaming...
broadcast a panel discussion on political books that was taking place at BookExpo America
BookExpo America
BookExpo America is the largest annual book trade fair in the United States. BEA is almost always held in a major city over four days in late May and/or early June...
, 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
Bill O'Reilly (political commentator)
William James "Bill" O'Reilly, Jr. is an American television host, author, syndicated columnist and political commentator. He is the host of the political commentary program The O'Reilly Factor on the Fox News Channel, which is the most watched cable news television program on American television...
, 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 incorrect statements that his former program Inside Edition
Inside Edition
Inside Edition is a thirty-minute American television syndicated news program, first aired on CBS on October 9, 1988. It was originally similar to the programs Hard Copy and A Current Affair, but now more closely resembles a condensed version of breakfast television, exclusively with pre-recorded...
had won two Peabody award
Peabody Award
The George Foster Peabody Awards recognize distinguished and meritorious public service by radio and television stations, networks, producing organizations and individuals. In 1939, the National Association of Broadcasters formed a committee to recognize outstanding achievement in radio broadcasting...
s, when it in fact won a Polk Award after O'Reilly left the show. The two then engaged in a heated confrontation, which culminated in O'Reilly's shouting, "Shut up! Shut up!" after Franken interrupted him. 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, 2003, Fox News filed for relief in New York state court. On August 14, Franken's publisher removed the action to the United States District Court for the Southern District of New YorkUnited States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
on federal question grounds. In what author and editor Richard Blow described as "an eight-inch thick legal filing," 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. The filing cited only two sources for those quotes, one of which was a website to which Bill O'Reilly was a contributor, and the other was a website where anyone could contribute. Fox also requested a temporary restraining order
Restraining order
A restraining order or order of protection is a form of legal injunction that requires a party to do, or to refrain from doing, certain acts. A party that refuses to comply with an order faces criminal or civil penalties and may have to pay damages or accept sanctions...
(denied August 20, 2003) to restrain the distribution of the book until their request for a preliminary injunction
Preliminary injunction
A preliminary injunction, in equity, is an injunction entered by a court prior to a final determination of the merits of a legal case, in order to restrain a party from going forward with a course of conduct or compelling a party to continue with a course of conduct until the case has been decided...
was heard by the court.
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
Amazon.com
Amazon.com, Inc. is a multinational electronic commerce company headquartered in Seattle, Washington, United States. It is the world's largest online retailer. Amazon has separate websites for the following countries: United States, Canada, United Kingdom, Germany, France, Italy, Spain, Japan, and...
's best-seller list from number 489.
On August 22, U.S. District Court judge Denny Chin
Denny Chin
Denny Chin is a judge on the United States Court of Appeals for the Second Circuit. He was a judge on the United States district court for the Southern District of New York before joining the federal appeals bench. President Clinton nominated Chin to the district court on March 24, 1994, and...
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, 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
Shepard Smith
David Shepard Smith, Jr. , known better as Shepard Smith, is an American television news anchor. He is host of Fox Report with Shepard Smith and Studio B weekdays on Fox News Channel. In addition, he anchors the 5:00 p.m...
were waiting for a hotel shuttle
Public transport
Public transport is a shared passenger transportation service which is available for use by the general public, as distinct from modes such as taxicab, car pooling or hired buses which are not shared by strangers without private arrangement.Public transport modes include buses, trolleybuses, trams...
, O'Reilly said, "I'm gonna sue him! I'm gonna sue him!" A week later, Franken's publisher received a letter from Fox saying they were planning to sue.
Judge's decision
Plaintiff Fox News Network, LLC ("Fox") has moved for a preliminary injunction enjoining defendants from, among other things, using the phrase "Fair and Balanced" in the title of the book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, written by defendant Al Franken. The motion is scheduled to be heard by the Court on August 22, 2003 at 3:30 p.m.
By letter dated August 19, 2003, Fox requests a temporary restraining order immediately restraining defendants from further distributing the book pending argument on August 22. By letter dated August 20, 2003, defendants oppose the application for a temporary restraining order.
Fox's application for a temporary restraining order is denied. Fox had not previously requested this relief, and the preliminary injunction motion will be heard in two days in any event. I do not believe defendants or their counsel have in any way misled the Court about the release date of the book.
This order is without prejudice to the parties' arguments on the preliminary injunction motion. I will consider the issues on the merits as I decide the motion for a preliminary injunction following the argument on Friday.
SO ORDERED. 2003 U.S. Dist. LEXIS 18693; 31 Media L. Rep. 2254 (2003)
After effects
The most direct result of the suit was a windfall for Franken and his publisher, Penguin GroupPenguin Group
The Penguin Group is a trade book publisher, the largest in the world , having overtaken Random House in 2009. The Penguin Group is the name of the incorporated division of parent Pearson PLC that oversees these publishing operations...
(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, in December 2003, the Independent Media Institute, publishers of the Web site AlterNet
AlterNet
AlterNet, a project of the non-profit Independent Media Institute, is a progressive/liberal activist news service. Launched in 1998, AlterNet now claims a readership of over 3 million visitors per month .AlterNet publishes original content as well as journalism from a wide variety of other sources...
filed a petition to cancel the trademark in the U.S. Patent and Trademark Office's Trademark Trial and Appeal Board
Trademark Trial and Appeal Board
The Trademark Trial and Appeal Board is a body within the United States Patent and Trademark Office responsible for hearing and deciding certain kinds of cases involving trademarks. These include appeals from decisions by USPTO Examiners denying registration of marks, and opposition proceedings...
, calling it "notoriously misdescriptive." The Institute and Fox settled in 2005, and the TTAB accordingly dismissed the petition without prejudice.
In 2004, Franken began hosting a talk show, originally titled The O'Franken Factor, on the Air America Radio
Air America Radio
Air America was an American radio network specializing in progressive talk programming...
network. The program's title was a jab at Bill O'Reilly's show, named The O'Reilly Factor
The O'Reilly Factor
The O'Reilly Factor, originally titled The O'Reilly Report from 1996 to 1998 and often called The Factor, is an American talk show on the Fox News Channel hosted by commentator Bill O'Reilly, who often discusses current controversial political issues with guests.The program was the most watched...
. Franken said that he chose the name to "annoy and bait" O'Reilly into filing another lawsuit. Three months later, Franken changed the name to The Al Franken Show
The Al Franken Show
The Al Franken Show was the flagship talk show of the former talk radio network, Air America Radio. Hosted by Al Franken, it featured commentary and interviews arguing for left-wing positions on the issues of the day, and comically poking fun at the George W. Bush Administration. The show began as...
.
The case was documented as part of The First Amendment Project.