Tart humor gets its day in court

This summer, threats to freedom of expression are mobilizing First Amendment lawyers and comedians concerned about the right to criticize - and be funny about it.

Topping their list is a lawsuit filed this month by the Fox News Network against political satirist Al Franken and his publisher, Penguin. The charge: that Mr. Franken is violating the network's trademark on the phrase "fair and balanced" by using it in the title of a book being rushed to stores this week: "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right."

Fox won't comment on the pending proceedings - oral arguments in the case are expected to be held Friday. But in legal documents, the network argues that the use of its trademark - along with similarities to the covers of books by Fox commentator Bill O'Reilly, who is also featured on Franken's cover - might lead people to believe the book is a Fox product. [Editor's note: The original version of this article misstated the day oral arguments were expected to begin in the lawsuit filed by Fox News Network against Al Franken and his publisher.]

Those who find the lawsuit frivolous and an infringement on free speech include The Wall Street Journal and The Authors Guild. And legal observers say this case - and one earlier this summer involving director Spike Lee and a new cable channel "Spike TV" - contribute to the perception that intellectual property cases are getting out of hand.

Aggressive policing of copyrights and trademarks has increased in recent years, as has successful lobbying for more laws. The Internet is partially to blame, with companies trying to limit unauthorized use of items like images and songs. The result, say observers, is an environment where free speech and cultural expression are inhibited.

"As culture increasingly becomes fenced off and privatized, it becomes all the more important for us to be able to comment on the images, ideas, and words that saturate us on a daily basis. This is what makes it first and foremost a free-speech issue," says Kembrew McLeod, a communications professor at the University of Iowa who has studied intellectual property and culture. "The problem is that courts and lawyers interpret it as an economic issue. Both positions make sense, it just depends on which we want to value more."

The effects of the increase in litigation are felt throughout the media, where Internet service providers have been forced to stop hosting websites due to new laws, and print publications are bending over backward to make sure they don't infringe anything. In recent years, courts have heard numerous cases on the subject - from a parody of "Gone With the Wind," to a song that uses Mattel's "Barbie" in its lyrics.

Those opposed to the glut of lawsuits favor a range of actions, including punishing lawyers who knowingly get involved in frivolous threats. Others are monitoring court cases, doing what they can to inform the decisions. At least one group, The Authors Guild, is closely watching the outcome of the Fox case for that reason. This week the group is filing documents in favor of the defendants, arguing that many books use registered trademarks in their titles - including "The Devil Wears Prada," by Lauren Weisberger, and "Prozac Nation" by Elizabeth Wurtzel.

Paul Aiken, executive director of the New York-based guild, agrees with those who say the case is frivolous and likely to go Franken's way. But the manner in which the judge writes his opinion is also important, he says.

"The case is ... likely to set important precedent as to the precise boundaries between trademark and free expression, and we want that boundary favoring free expression just as much as possible," says Mr. Aiken.

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