“Paradoxically, a lawsuit, especially a flimsy one, can be a boon to a book’s fortunes. And increasingly, some writers and publishers admit to hoping they’ll attract one.” Humorist Al Franken was widely envied by other authors when Fox News filed its much-derided suit against his book title (see Nov. 22), and just this past week a small publisher, Soft Skull Press, got a windfall of coverage when publisher HarperCollins sent a cease and desist order (from which it soon retreated) suggesting that the title of one of its new books, “How to Get Stupid White Men Out of Office” was too close to the title of Michael Moore’s “Stupid White Men”. Of course, things can get sticky fast if the legal complaint really does have merit. (Christopher Dreher, “So sue me… please!”, Boston Globe, Mar. 21) (via Tyler Cowen, Volokh).
Fox, who was previously on the offense when its sister network Fox News complained about Al Franken’s use of “fair and balanced” (Nov. 22 and links therein), now finds itself subject to a demand letter from Gold Circle Films, who complains that the title “My Big Fat Obnoxious Fiancé,” a reality prank series that ends Monday, is too similar to the 2002 movie title “My Big Fat Greek Wedding.” (Sarah Hall, “Big Fat Stupid Lawsuit”, E! Online, Feb. 18). Neither the makers of the 1992 Swedish movie “My Big Fat Father” nor, to bring it full circle, Al Franken, who wrote the 1996 book “Rush Limbaugh is a Big Fat Idiot,” have commented.
This is not just a 21st-century issue. Urban legend has it that a movie studio complained that the movie “A Night in Casablanca” would be confused with the more memorable Humphrey Bogart movie “Casablanca”; Groucho Marx responded (perhaps as a publicity stunt) in a letter by noting that the Marx Brothers were brothers long before Warner Brothers was using the term. “I am sure that the average movie fan could learn in time to distinguish between Ingrid Bergman and Harpo. I don’t know whether I could, but I certainly would like to try.” (Groucho Marx, 1946).
You may recall the laughable lawsuit over Al Franken’s book, “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right”, discussed here Aug. 23 and Aug. 12. A Franken fan site has generously provided a complete transcript of the Aug. 22 hearing for readers’ amusement.
Federal judge Denny Chin in Manhattan rebuffed Fox News’s request for an injunction to prevent the Penguin Group from releasing humorist Al Franken’s new book with a title mocking the network’s “Fair and Balanced” slogan (see Aug. 12). “There are hard cases and there are easy cases. This is an easy case,” said Judge Chin. “This case is wholly without merit both factually and legally.” “During arguments held before his ruling, Chin asked Fox lawyer Dorie Hansworth if she really believed that the [book's] 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.” The book’s cover is dominated by its title, “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right”. (Gail Appleson, “Fox Loses Bid to Stop Sale of Franken Book”, Reuters/Yahoo, Aug. 22). Ernest Svenson (Ernie the Attorney) chides Fox not only for the weakness of its substantive trademark position but also for using its complaint as a vehicle for personal attacks on Franken: “the courts aren’t there for litigants who want retribution.” (“A lawyer’s take on Al Franken’s First Round Legal Victory”, Blogcritics, Aug. 22). Eugene Volokh also comments.
Shrinking the parody exception? “Fox News Channel has sued liberal humorist Al Franken and the Penguin Group to stop them from using the phrase ‘fair and balanced’ in the title of his upcoming book. Filed Monday in Manhattan, the trademark infringement lawsuit seeks a court order forcing Penguin to rename the book, ‘Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.’ It also asks for unspecified damages. Fox News registered ‘Fair & Balanced’ as a trademark in 1995, the suit says.” The suit claims that Franken displays a “clear” intent “to exploit Fox News’ trademark, confuse the public as to the origins of the book and, accordingly, boost sales of the book”. (“Fox Sues Humorist Al Franken Over Slogan”, AP/Washington Post, Aug. 11). Last month it was reported that lawyers for Fox had sent a cease-and-desist letter to the Austin, Tex. creators of a T-shirt with a message “Faux News: We Distort, You Comply”, parodying the network’s well-known slogan. (Lee Nichols, Austin Chronicle, Jul. 11; AgitProperties website, Jun. 20).
In June radio talk show host Michael Savage, who at the time also had a TV talk show on MSNBC, sued three critics who had been urging advertisers to boycott his show (“Savage sues ‘rats’”, Southern Voice, Jun. 27; defendants SavageStupidity.com and TakeBacktheMedia). Separately, Savage’s producers fell short in an effort to argue that SavageStupidity.com’s domain name was “confusingly similar” to that of Savage’s own website and should be forfeited. (& more on the Fox/Franken case: New York Times, Eugene Volokh, Kevin Drum, Matt Yglesias, and (via InstaPundit) Alex Knapp, Jeff Jarvis)(& letter to the editor, Dec. 6).