timberlandko wrote:I ain't gonna do anybody's homework for 'em, but the FOX litigation had precious little to do with anything related to The First Ammendment.
I'm calling you out on this one, Timberlandko, principally because of your condescending comments. I have nothing against you personally, but I wonder if your First Amendment knowledge is as deep as you imply. This case most certainly includes First Amendment issues, and the Southern District of N.Y. agrees.
From the preliminary injunction hearing for
Fox News Network v. Penguin Group, 03 Civ. 6162 (SDNY Aug. 22, 2003):
Quote:Even assuming for the moment that it is a valid mark, however, and even assuming there is some danger of confusion, here the First Amendment trumps. The First Amendment requires us to weigh the public interest in free expression against the public interest in avoiding confusion. In particular, titles, titles of books, movies, etc., have great protection under the First Amendment, and the Second Circuit has held in the Rogers case and the Cliff Notes case that the Lanham Act cannot could be construed narrowly to intrude on First Amendment values in this context.
The expressive element of titles requires more protection than labeling, for example, for commercial products. Mr. O'Reilly himself used the trademark phrase, or a play on the trademarked phrase "the good, the bad and the ugly" in his book entitled, "The Good, the Bad and the Completely Ridiculous in American Life." As the Authors' Guild has pointed out in its very helpful amicus brief, there is a long list of similar such uses of trademarked phrases or names.
Parody is a form of artistic expression protected by the First Amendment. The keystone to parody is imitation. Here, whether you agree with him or not, whether you like what he says or not, in using the mark, Mr. Franken clearly is mocking Fox. In setting himself up in what is apparently a news room, he is mocking Fox and O'Reilly. Mr. O'Reilly is bringing to mind in fact the cover of one of Mr. O'Reilly's books. Even though this may result in tarnishment or dilution in the general sense, it is fair criticism.
Of course, it is ironic that a media company that should be seeking to protect the First Amendment is seeking to undermine it by claiming a monopoly on the phrase "fair and balanced." The motion for a preliminary injunction is denied. We are adjourned. I gather you will hear from Judge Carter with respect to a motion to dismiss or an answer or further proceedings in the case.
source
As the court concludes, the First Amendment provides protection for parodies in private trademark suits. It had everything to do with their refusal to issue a preliminary injunction (the court also noted that the trademark was weak). The preliminary injunction was the primary remedy sought by Fox, and they dropped the suit after they lost this motion (a later, permanent injunction would have been silly after the book was already published) As I argued above, the presumption of no state action is also not clear when courts issue preliminary injunctions enjoining speech.
See e.g. Willing v. Mazzacone, 393 A.2d 1155 (Pa. 1978) (refusing to enjoin even libelous speech on grounds that a court injunction implicates First Amendment free speech).
I hesitate to further litter this thread with cute quips, But you are certainly correct that:
Quote:lotsa folks who rant and rave most stridently about "Free Speech" simultaneously have a flawed perception of the concept and little to no knowledge of the actual juridical interpretation and to what and in what manner that interpretation is applicable..
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