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.

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."

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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