Ernie the Attorney, very cool analysis, thanks!

All I'm saying is that- to use the formal legal jargon- Franken is going to end up putting a saddle on that bitch O'Reilly and riding him around the room.

Having done my part to dilute Fox's invalid trademark by adding "fair and balanced" to my blog description, I think that I need to turn my mockery to the lawyer who said this (from the Reuters story linked above)

During arguments held before his ruling, Chin asked Fox lawyer Dorie Hansworth if she really believed that the cover was confusing.

"To me, it's quite ambiguous as to what the message is," she said. "It's a deadly serious cover ... This is much too subtle to be considered a parody."

frankin is void of any real insight. to sell books he puts the right wing's names and phrases on the cover. this is obvious. what do you expect from a parody comic. why can't you sell books and ideas on merit. fox is correct ethically, but you can't copyright titles or phrases. next book will be
"Live from New York its Al Frankin"

I'm reasonably confident that the defendants removed the case to federal court under 28 U.S.C. § 1441, based on the fact that the original state-court complaint alleged claims under the federal Lanham Act.

Choosing to do so was a no-brainer. As good as the New York state trial courts are, the federal Southern District of New York judges (and their clerks) are even better, and I'd much rather be defending the First Amendment in the federal Second Circuit than the New York state appellate courts (the confusingly named Appellate Division or Court of Appeals).

As I've blogged on my own site (at length here, < http://beldar.blogs.com/beldarblog/2003/08/fair_and_balanc.html >, and briefly here < http://beldar.blogs.com/beldarblog/2003/08/toldja_so_fox.html >), my take on this case -- as a conservative Republican attorney who quite often watches Fox News on TV and regularly checks their website -- is absolutely consistent with, and probably even less generous to Fox, than Mr. Svenson's.

From what little I know of the book it looks simply like a troll post published by a big publisher. O'Reilly and Fox News both fell for it.

And one more small quibble:

The news accounts don't say, but I strongly suspect this was brought as an application for a temporary restraining order rather than an application for a preliminary injunction. (I've yet to meet a non-lawyer reporter who's had a clue about this distinction; they think they're on top of things if they manage to fish the word "injunction" out of their vocabulary, without realizing that there are different types of injunctions.)

There's no indication that any testimony was heard, and this would be an awfully fast track for a full-blown preliminary injunction hearing, which very much resembles a trial. I suspect the judge ruled just on the basis of Fox News' pleadings, which probably included some sort of verification or supporting affidavit (although I don't recall seeing that in the original state-court complaint .pdf, but it could have been in a separate document).

It's not a hugely significant distinction -- Fox News could still probably appeal immediately, even if it was a TRO, if they are actually trying to enjoin publication and distribution of the book (hah!).

To the extent it's meaningful, though, it just is further humiliation for Fox News and its lawyers -- i.e., they couldn't even win a "freeze the status quo" motion when the other side was procedurally prevented from calling witnesses or putting on any controverting evidence.

"During the hearing Judge Chin called Fox's trademarked slogan "weak" or "invalid" because it is a phrase often used by journalists."

I've no brief (ha!) for Fox, but this statement strikes me as incorrect. I don't really recall any newsie using the phrase "Fair and Balanced" prior to FoxNews' birth -- and since then, it's almost always used (by non-Fox reporters/columnists/pundits) as a sarcastic reference TO Fox. Whether that means the phrase "belongs" to Fox or not, I'll leave to the laywers -- who seem already to have spoken. :-)

Chuck, I think you're right about the history of the phrase. I'm no trademarks/tradenames expert; nor have I seen a full transcript or any court papers other than the original complaint. With those qualifications, though, it seems to me that the judge might have meant a couple of things.

He could have meant that Fox News hasn't protected its trademark, and having "slept on its rights" can no longer enforce them. But that would be a very fact-intensive determination of the sort a court would usually only make after taking live testimony, which I don't think happened this week. So I think it's unlikely that he meant that.

I think it's more likely that by "weak" he meant composed of very common words, prone by their nature to many variations and alternate combinations. "Kleenex" or "Exxon" are extremely distinctive, and if someone knows those words at all, it will almost certainly be in connection with their commercial owners. "Fair and balanced" is more like "crunchy and blue" or "tasty and satisfying" -- phrases whose individual parts make sense. It takes a lot more work -- usually advertising or other high-visibility repetition -- to make that kind of pedestrian phrase into something that consumers immediately associate with a single company.

That's not to say Fox has failed to do so -- and indeed, I don't think that the judge made such a finding." That would also be a very fact-intensive determination. But one of the factors that judges are supposed to consider before granting a preliminary injunction (if that's what this was, rather than a TRO) is the probability that the person suing will ultimately win the case after a full-blown pretrial preparation and a trial on the merits. Which is another way of saying, if the judge thinks you have a very uphill road to victory, he's less likely to give you an injunction right up front. This particular comment about "fair and balanced" being "weak" was probably the judge more or less speculating, pointing out that Fox will have a hard time meeting its burden of proof.

So this might have been *A* factor in the judge's decision -- but it probably was not *THE* deciding factor, nor even the most important factor in comparison to, say, the obvious parody point.

Beldar: yeah - it would have been better if the court's decision was rendered as:

YHBT HAND

Actually, fair and balanced were terms used by journalists long before Fox News was a twinkle the eye of Roger Ailes. You'll probably find the terms in most any journalism textbook. There is even a progressive media criticism group called FAIR (Fairness & Accuracy in Reporting) which was founded in 1986.

For the people who've trashed the book without reading it (always a lofty position), you'll have to face the fact that many people find Franken funny. And he doesn't just aim at the right, his last book Oh the things I know was a parody of liberal columnist Anna Quindlen's book based on a commencement speech she gave.

My advice is to get the audiobook version. Part of his humor is in the delivery (that is how I "read" Rush Limbaugh is a Big Fat Idiot). And if you have a chance, see him on his book tour (I imagine more cities will be added now).

As with any humor, it is hit and miss, but I laughed reading the intro to Lies.

Great comments. You know, we had Jim Bakker, Jimmy Swaggart, Bill Bennett; now we have O'Reilly. "Shut up." "Shut up." I only wish he had been in Judge Chin's courtroom when the people were laughing. It would have been, "shut up Judge Chin, shut up (what kind of name is Chin, anyway), shut up, shut up, cut his mike, you disgust me, what a pinhead . . ."

I found Frankin's book to one of the best documented political satires I have ever read. One marvels that he is a comedian. Granted, there were the Graduate Assistants, but the points he makes in this book are solidly backed up and to be ignored at one's own intellectual peril.