rejectomorph (flying_blind) wrote,

A Fair and Balanced Entry, with Modest Proposal Appended

What with the California recall election, the release of Gigli, and various other events of earth-shattering importance, the "news" has been providing us with a great deal of entertainment of late. But the particular "news" which I find most entertaining is that of the Fox "News" lawsuit against former Saturday Night Live cast member and erstwhile pundit Al Franken. I'm sure everyone has heard of this. Fox "News" is in a snit because the title of Franken's soon-to-be-released book includes the phrase "Fair and Balanced," which Fox claims is their trademarked property. They want the courts to block the release of the book. This has led to many amusing articles in the press. A typical article which I found amusing was written by Rick Kushman, and published in yesterday's Sacramento Bee.

This is a good one. Fox News is suing comedian Al Franken, charging he misappropriated the term "fair and balanced" in his forthcoming book. Right off, you have to say good for them, because if anyone knows about misappropriating that term, it's Fox.
Specifically, Fox News says Franken's upcoming book, "Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right," violates its trademark on the term "fair and balanced." Fox also calls Franken a "parasite," "shrill and unstable" and "increasingly unfunny," which sounds pretty fair and balanced to me.

Seriously, you have to say it's about time a major corporation stood up to satire. Everywhere you go, someone's ruining this nation with satire. Late night TV: satire. Comedy clubs: satire. Cable coverage of California's recall: satire.
Plus, you have to love Fox's honesty. "Franken is neither a journalist nor a television news personality," the network said in its court papers. Thank you. TV news personalities are separate from journalists. Good to see that in print.

Now you're probably saying, sure, this suit sounds legit, but what court will take it?

Well, good news. Fox filed in New York, where, remember, the courts let Spike Lee temporarily stop TNN from changing its name to Spike TV because everyone in America would think of him and mistake the cable channel for one of his movies such as, uh, let's see, well, one of his movies.

And, of course, columnists will say things such as Fox is arguing against free speech, that it's trying to stop criticism of its news coverage (while it criticizes other TV news coverage), that it's harassing someone who has a different political point of view and that it's attacking the very Constitution and Bill of Rights it so patriotically says it defends, blah blah blah. Columnists -- what do they know?

Anyway, this is TV. Since when does TV care about the Bill of Rights? I don't see the word "ratings" anywhere in the Bill of Rights.

Besides, this should be proof for Fox's critics that it's not all-conservative, all-the-time news. A conservative channel wouldn't file a lawsuit in this lawsuit-happy society. It wouldn't use government to squash an individual's rights, or try to weaken the Constitution. See, Fox uses big government. Good ol' liberal Fox.

There are, however, a couple of points that might dim some people's enthusiasm for the lawsuit. For one, Fox wants to block Franken's book because, Fox says, "He is not a well-respected voice," and, "He appears to be shrill and unstable."

Here's my concern: Without shrill, unstable, unrespected voices, who's going to write all the diet books in America?

And Fox said Franken is a "C-level" talking head whose "views lack any serious depth or insight," and while that may be fine, I worry that if the court says those things matter, Fox won't be able to send Geraldo Rivera to the next war.

Or maybe that's Fox's real plan. It has found a way to get out from under its contract with Rivera and, for playing along, Fox is tossing Franken a bone. Although Franken's book isn't due out until next month, it went from something like No. 489 in sales before the suit to, by Monday, No. 1 on's charts.

So it's all a plot. Pretty smart of me to see, don't you think? So smart, I'm going to appropriate the phrase "smart." Or maybe "smart ass." You decide. That's it. I'll report, you decide. No, wait, that's already taken.

I'm not up on the law regarding trademarks, which are not quite the same as copyrights. Though copyrights have been greatly extended in recent years, and can now run for as long as 120 years, trademarks can be held in perpetuity. I believe they have to be renewed from time to time. I know that they used to require periodic renewal. In the late 1960's, a California political activist whose name I've forgotten had an organization whose name he had failed to trademark. The name was then trademarked by another activist who had a very different agenda. The first activist couldn't afford to take the second activist to court, so he hit on a novel strategy. Having just learned the hard way about trademark law, he searched through the records until he found a large company still in operation which had failed to renew its own trademark. It was the Helena Rubenstein Cosmetics Company. He then registered the name Helena Rubenstein as his own trademark, and sent a cease and desist order to the company, telling them that they could no onger do business under that name. The company paid him a considerable sum to return the rights to the name to them. I don't think the activist ever bothered to get the original name of his own organization back. Time has dimmed the memory, but I believe that he took his bundle of cosmetics cash and vanished from politics.

I have no idea whether Fox "News" will win its case against Al Franken. Franken, after all, is not competing with Fox "News," but merely writing about them, and using the trademarked phrase satirically. Since the purpose of trademarks is to protect companies from fraudulent competitors who would trade on the reputable company's image for their own gain, and Franken isn't doing that, he may very well win the case. But however the case goes, the fact that the Federal Government is issuing trademarks on hoary cliches such as "fair and balanced" (which could probably be found in dozens of journalism text books published over the last half century or more) has given me an idea. Should Fox "News" win the case, a splendid opportunity will open up for us all.

I'm sure that any publisher, whether a corporation or an individual, could get a trademark on a phrase of their choice. I don't know if titles can be trademarked -- I know they cannot be copyrighted -- but it seems clear that slogans can be trademarked. Every person with a journal at this site, and every person with any sort of online journal or weblog or web site, is a publisher. If each of us were to trademark a slogan -- say, something like "Compassionate Conservative," or "New Democrat," or anything else which the powers -that-imagine-they-be have failed to trademark for themselves, we could tie up so many phrases that hardly a politician, or advertiser, or business enterprise could make a public statement without running the risk of a lawsuit from one or another of us. And for those of us lucky, or imaginative, enough to trademark a phrase which came to be in great demand might make a considerable fortune off of it. And wouldn't it be entertaining if, in the midst of a presidential campaign, one of the candidates used some half-witted cliche in his speech or on his posters (and when haven't they) and suddenly found himself slapped with a lawsuit from Bob Slobowitz, who turned out to have the phrase trademarked as the slogan of his LiveJournal?

I don't know how much it costs to get a trademark, or how long it takes the government to process an application for one, but I'm sure there are plenty of online journalers and web site owners who have the means and the patience to acquire them. The fact that there might eventually be some profit to be made is an extra incentive, but the greatest pleasure would be derived, I think, from the act of taking advantage of the relentless stupidity of our governing classes, and from flinging monkey wrenches into the works of both commerce and the political establishment. For my money, it's the next best thing to having Gary Coleman elected governor of California!

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