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Tart humor gets its day in court

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No matter how baseless their claims can seem, companies are required to police the use of their intellectual property or they could lose their rights. It's one reason the people who make Kleenex would prefer you generally use the term "facial tissue" so their trademark doesn't go the way of the once unique "escalator."

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Trademarks are used to reduce confusion in the market place about the origin of a product. But provision is also made in the law for "fair use" of copyrights and, to some degree, trademarks - allowing people to use material without the owner's consent in certain cases, such as criticism (including parody).

The role of the legal system in helping to defend free speech and creative rights has been mixed, say observers. Some courts, when sorting through the abundance of cases, are finding in favor of defendants on creative grounds - as happened recently with the band Aqua's "Barbie Girl" song. Mattel appealed the case to the US Supreme Court, which earlier this year declined to hear it.

At least half a dozen decisions in federal circuit courts in the past five years have upheld limits on trademark law involving artistic expression, says Lee Carl Bromberg, an intellectual-property litigator in Boston. To him, that suggests "that the courts are going to protect people who are engaged in these kinds of activities against the aggressive pursuit of trademark owners," he says.

But Mr. McLeod, of the University of Iowa, says the system could be doing more to balance the tension between free speech and intellectual-property rights.

He points to a situation last year where a website parodied Dow Chemical - using its copyrights and trademarks - and was deprived of an online outlet when Dow threatened the site's Internet service provider by invoking the 1998 Digital Millennium Copyright Act. In cases like that, he says, the copyright or trademark owner, rather than a court, decides what constitutes "fair use."

If groups that benefit from free speech are to help make the current environment better, they have to stop undermining one another, say observers. Of particular concern to some tracking the Fox case - like Kenneth Paulson, head of the First Amendment Center in Nashville - is that a news organization would try to inhibit the free expression of others.

That's one of the issues that apparently caused Spike Lee to reconsider his objections to a new cable channel for men with the name "Spike TV." When he settled his case in July - he had claimed that media giant Viacom was trying to capitalize on his name - he said in a statement that as an artist, he didn't like the idea that he might be limiting Viacom's free expression.

Ultimately, the antics in the Fox case may prove more entertaining than anything in the pages of Franken's book. The case is largely viewed as an offshoot of a feud between Franken and O'Reilly. (Franken has had run-ins with O'Reilly and other Fox hosts this year.) In its complaint, Fox calls Franken "shrill and unstable," and says his views "lack any serious depth or insight." Rather than injuring the "Saturday Night Live" alum, the publicity has catapulted his yet-to-be-released book to No. 1 on the Amazon. com bestseller list.

Franken has been out of the country, but said in a statement, "From everything I know about law regarding satire, I'm not worried."

He jokingly suggests that he will use the law to his advantage: "A few months ago, I trademarked the word 'funny.' So when Foxcalls me 'unfunny,' they're violating my trademark. I am seriously considering a countersuit."

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