Fox News Network, LLC, v. Penguin Group (USA), Inc., and Alan S. Franken (2003 U.S. Dist. LEXIS 18693; 31 Media L. Rep. 2254) was a civil lawsuit filed in the United States District Court for the Southern District of New York on August 7, 2003. Fox News Channel, the plaintiff, sought to enjoin Al Franken from using Fox's trademark phrase "fair & balanced" in the title of his then-forthcoming book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.[1] Judge Denny Chin denied Fox's motion for injunction on August 22, and the network dropped the suit three days later.
On August 7, 2003, Fox News filed for relief in New York State court. On August 14, Franken's publisher removed the action to the United States District Court for the Southern District of New York on federal question grounds. In what author and editor Richard Blow described as "an eight-inch thick legal filing,"[6] the network contended that it had been irreparably harmed by the publicity surrounding Franken's use of the phrase "fair and balanced" on the preliminary cover of Lies and the Lying Liars Who Tell Them, which Fox claimed it had first become aware of following the BookExpo panel discussion in May. The filing stated that Franken had "been described as a 'C-level political commentator' who is 'increasingly unfunny'", and claimed that the comedian was "shrill and unstable" and had "appeared either intoxicated or deranged" at a press correspondents' dinner in April 2003. The filing cited only two sources for those quotes, one of which was a website to which Bill O'Reilly was a contributor, and the other was a website where anyone could contribute. Fox also requested a temporary restraining order (denied August 20, 2003) to restrain the distribution of the book until their request for a preliminary injunction was heard by the court.[7]
In response, Franken joked that he had trademarked the word "funny", and that Fox had infringed his intellectual property rights by characterizing him as "unfunny." Franken's then-unreleased book subsequently rose to the #1 sales position on Amazon.com's best-seller list from number 489 (his second #1 bestseller after Rush Limbaugh Is a Big Fat Idiot and Other Observations, which attained the top of the New York Times' list in 1996).
On August 22, U.S. District Court judge Denny Chin heard arguments from attorneys representing the plaintiff and the defendant regarding Fox News's request for an injunction to prevent Franken from releasing the book with its current title. In a hearing punctuated at times by laughter from the assembled spectators,[8] Chin questioned Fox News attorney Dori Ann Hanswirth harshly about her contention that the phrase "fair and balanced" on the cover of Lies and the Lying Liars Who Tell Them was likely to confuse consumers into believing that the book was produced or endorsed by Fox News Channel. At one point he asked Hanswirth, "Do you think that the reasonable consumer would believe, seeing the word lie above Mr. O'Reilly's face, that Mr. O'Reilly or Fox were endorsing this book?"
Chin denied the injunction and said that the case was "wholly without merit, both factually and legally". He went on to suggest that Fox News' trademark on the phrase "fair and balanced" could be invalid. Three days later, Fox News Channel filed to drop the lawsuit.
Though O'Reilly denies it, Franken believes that the commentator goaded Fox News into suing him. In the paperback edition of his book, Franken recalls an incident at the BookExpo where, as O'Reilly and Fox News colleague Shepard Smith were waiting for a hotel shuttle, O'Reilly said, "I'm gonna sue him! I'm gonna sue him!" A week later, Franken's publisher received a letter from Fox saying they were planning to sue.
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