Fox News Porn - Fair Use Orgy!

This is going to be a fun election for intellectual property wonks. We’ve already seen the Clash of the Anti-Hillaristas!

Now, Fox News finds itself in a fair use maelstrom.

In an effort to criticize the network that brought us eight years of darkness, an anonymous webmaster has created the Fox News Porn website. Apparently the webmaster has detected higher than normal levels of T&A on Fox News.

One of the links brings you to Fox Attacks, a blog that seems to be devoted to tearing down the Fox Network.

Disclaimer, I do occasional legal commentary on Fox. Nevertheless, I don’t allow that to bias my opinion of the network. I do think that Fox is open to plenty of honest criticism, but I find this kind of attack to be more than a little dishonest. Every network dishes up the skin. If these people have a beef with Fox’s content and political leanings, so be it. That is the arena in which they should take on Fox - not some faux morality crusade.

This kind of shrieking is far too reminiscent of the McCarthy-like tactics employed by the religious right.

Lets sit on the sidelines and see if Mr. Murdoch takes the criticism, or if this winds up being a really interesting intellectual property case. The site clearly uses the Fox News logo (trademark infringement) and clearly uses Fox’s copyrighted materials. However, I’m certain that if Fox attempted to bring a claim for either one, the fair use defense would obliterate the claims.

Clash of the Anti-Hillaristas

It is always funny when rival political factions get into trademark disputes instead of letting their ideas compete in the marketplace. That usually happens with opposing political factions. See, e.g., Hypocrites for Community Values Lose Round One.

In a new twist, we see two groups with a common interest in a trademark spat.

Apparently the world just ain’t big ’nuff for two anti-Hillary groups.

Attorney General Nominee Mukasey on Trademarks and the First Amendment

In doing some research on the new Attorney General nominee, I discovered that he was the judge who penned the opinion in Tommy Hilfiger v. Nature Labs, LLC, 221 F. Supp. 2d 410 (S.D.N.Y. 2002).

In that case, Nature Labs produced a line of “pet perfumes” whose names parodied some of the higher-end human smell-good products. Judge Mukasey wrote a well-reasoned, thoughtful, and funny (as far as a trademark opinion can be funny) opinion.

Dischord & Minor Threat v. Nike

In this corner — Dischord Records and Minor Threat

For you kids who might not remember, Minor Threat was the spring from which all of the Washington D.C. punk rock scene flowed, the “godfathers of the straight-edge punk movement of the early 1980’s” (source) and its leader/front man Ian MacKaye is also the driving force behind Dischord records, which gave us (in addition to Minor Threat) punk classic bands like Dag Nasty, Government Issue, Youth Brigade, the foundational Teen Idles. Of course, Dischord’s flagship band since 1987 has been Fugazi, MacKaye’s most well-known project (which is unfortunately on hiatus).

Top Ten Reasons that that the USPTO no longer takes note of the facts when issuing Office Actions

I belong to a Trademark Lawyer’s newsgroup. One of my friends on that group (who will remain un-named) made the following understatement of the year:

“I have noticed Office Actions quoting right out of the TMEP, and apparently taking little note of the facts.”

I called the USPTO to ask them what they thought of this statement.

After pressing option 1, 5, 9, and then pressing zero five hundred times, I was connected to someone in a position of authority at the USPTO. I reported this comment to them, and they said that they knew about this situation and were just about to release a statement on it.

I asked if they would please provide me with a copy, and the courteously sent me the following press release on this “problem.”

Top Ten Reasons that that the USPTO no longer takes note of the facts when issuing Office Actions:

Is Disney Bringing Back Jim Crow?

Apparently four black teens were ejected from Downtown Disney for… wait for it…. loitering under Disney’s new “anti-gang, no-loitering policy.” Read here.

One also “made ‘kind of smart remarks’ to Disney security.” For this, they were detained, photographed and fingerprinted. The penalty for not respecting Walt’s authoritah? Banned for life from Disney property.

Seriously, how in the hell can you bust anyone for loitering in Downtown Disney? Isn’t that what the place is for?

Well, looks like the Fascist Mouse really stepped in it this time. While four black youths being harassed by bigoted peckerwoods isn’t anything rare, this time they just might get called on it. One of these “dangerous” youths who refused to respect Disney’s authoritah is the son of a civil rights lawyer.

That’s right. If Mickey wants to sing “Damn it Feels Good to be a Gangsta,” he had better make sure that the kids he is mistreating are actually powerless and poor. Oh no Pluto! One of their dad’s is a lawyer!

Nobody has organized a boycott yet… but I avoid that place anyhow. Talk about pre-packaged, shrink-wrapped, garbage culture. Disney is the kind of place that makes me wish that the movie Fight Club was real.

Interestingly enough, I was prowling around Disney’s corporate offices the other day, and found this document in a folder marked “Classified.”

Top Ten New Ideas for Disney World! (after the jump)

Take That Carol Burnett!

Carol Burnett isn’t funny. Sorry, maybe it is a generational thing. Maybe I have become numb to her corny humor after too many marathon sessions watching Jackass and South Park.

No, she just sucks.

Not just her art. She personally sucks. Carol Burnett has the distinction of having filed two cases that had a high likelihood of rolling back all of our First Amendment rights because she was offended. If she had a better haircut, her respect for the First Amendment (or lack thereof) might make one mistake her for George W. Bush.

Fortunately, United States District Court Judge Dean Pregerson does not suck. No, not at all. Judge Pregerson issued a magnificent ruling on June 1, putting Carol Burnett in her place for her absolutely frivolous and shameful complaint against Twentieth Century Fox and Family Guy.

My initial blog entry on this case from March 17.

Carol Burnett v. Family Guy Dismissal. A happy day for Free Expression.

The dismissal boils down to this: Fair Use.

The Copyright infringement claim was dismissed because parody is protected fair use. See Campbell v. Acuff-Rose.

The Trademark Infringement claim was a little less simple than that, but it boiled down to no likelihood of confusion. It shouldn’t take the wisdom of Solomon to arrive at that conclusion. Furthermore, there was no dilution. The First Amendment protects speech that might mock a trademark.

Its that simple.

In the “dodged a bullet” category, Carol got off lightly. Since the federal claims were dismissed, the court declined to exercise its jurisdiction over the state law claims. Had the court done so, the California Anti-SLAPP law would likely have resulted in a pretty nice award for Family Guy.

Giggity Giggity.

Carol Burnett v. Family Guy

This is a pretty funny lawsuit. Family Guy used Carol Burnett’s likeness (well, a cartoon depiction of her “Charwoman” character) in one of its episodes. The depiction shows Charwoman working as the janitor in an adult bookstore. She is shown mopping the floor next to a bin full of blow-up-dolls. She also apparently freaked out because Joe tells the other guys that when Carol tugged her ear at the end of her show, she was really saying good-night to her mom. Then Quagmire says “I wonder what she tugged to say good night to her dad! Oh! Giggity Giggitty!”

The suit seeks $6 million in damages for misappropriation of her name and likeness and violating her publicity rights.

The Smoking Gun has a longer article and the complaint. The video is posted there too, so at least go watch the video. Here is another article on it from E online.

This is not only interesting, but will give you a good preview of some of the right of publicity issues we will be covering later in the course.

What do you think? Should we send Carol Burnett’s lawyers your class notes from when we discussed Campbell v. Acuff Rose?

My opinion: Ms. Burnett’s lawsuit is doomed and it should be.

Why it is doomed:

Family Guy’s portrayal is protected by the doctrine of Fair Use. In the copyright context, this is well established by Campbell v. Acuff Rose. In the trademark context, it is somewhat less developed, but the principles are the same.

Why it should be:

This is a cornerstone of free expression. Whether you like Family Guy or not, the First Amendment protects your right to criticize, parody, and ridicule. Yes, even if the subject of that parody or ridicule does not particularly care for the result. Hustler Magazine v. Falwell, while not a copyright case, illustrates the principles at play. In that case, Jerry Falwell (a minister no less) was portrayed in a fake Campari ad as having had sex with his mother in an outhouse. Not surprisingly, this offended him. He sued for libel and intentional infliction of emotional distress. The Supreme Court held that the First Amendment protected this parody.

In the Burnett v. Family Guy case, Burnett is attempting to make an end run around the First Amendment values that Hustler v. Falwell protects.

Therefore, not only will her suit fail, but no matter how much you like Carol Burnett or hate Family Guy, that failure should be embraced as a victory for all of us, because a contrary result would be a terrible dimunition of all of our Constitutional rights.

I don’t just think that Family Guy wins. If I represented Family Guy, I’d have already sent a Rule 11 letter and a Rule 68 offer for a few pennies of nuisance money. I’m disgusted with any attorney who would sign this piece of trash litigation.

Oh, and for the record, I love Family Guy. I was ambivalent about Carol Burnett, but now I call her a no-class hack.