The little web site that has Fox News fuming

Media Life ^ | 7.1.03 | Jim Jazwiecki

[mhking]

The little web site that
has Fox News fuming

Legal threat over spoof T-shirts rouses $ support

By Jim Jazwiecki

   As a TV news operation, Fox News Channel prides itself on the give and take it offers viewers. But that can't be said for its legal department when the cable news network is the subject of some of the jabbing its on-air talents relish in. Recently, the people behind Agitproperties.com, an Austin, Tex.-based activist web site, received a letter from Fox lawyers insisting that the site stop selling T-shirts making fun of the News Corp.-owned channel. One shirt reads “Faux News: We distort, you comply,” while another advertises the “O’Reilly Youth,” a reference to Hitler's youth groups. In its letter, Fox threatened legal action, claiming that the T-shirts could result in consumer confusion and “the impairment of the goodwill represented by the name ‘Fox News Channel.'” Media Life recently spoke with Agitproperties webmaster Richard Luckett about the brouhaha.

So tell our readers about how this whole to-do between you and Fox News got started.

   We've been selling these shirts to fund our site, a clearinghouse for alternative news sources from all over the world. After all the foofaraw about the war in Iraq, our traffic and our sales went down to nothing and we were just about ready to pack things in. I was emailing people all over for months and months, and we could never get any interest generated. 
   But then Fox gave us this cease-and-desist letter, which I posted, and it was posted by several blogs. 
   The next thing you know, I'm getting interview requests from all over the world. My server crashed this morning because I got in excess of 65,000 hits. We’re averaging 400 to 500 emails a day, all of them supporting and encouraging. 
   The O'Reilly Youth shirts are flying out the window. I just can't tell you how many orders we've got. I've been doing nothing but fulfilling orders. It's a three-man operation in a garage in Austin.

   I must say that the whole reason this story is getting the media legs is because of bloggers. It's turned into a cause célèbre.
   It's very touching. I almost break down and cry thinking about what a hot-button issue I've touched here. We were very close to packing it in, and now the whole world wants to know what I think.
   My whole point is that this is going to make many, many people think twice about Fox. That's all I want to do.

Why did you decide to take on Fox News in the first place? What are your beefs with them, specifically?

   For them to call themselves fair and balanced and say "We Report, You Decide," is beyond the pale. The fact that they're the only cable news channel that, despite the fact that they're No. 1, feels the need to spout that every 15 minutes just smacks of Orwell.
   There's no other way for me to describe it. The way that liberals and left-wingers are treated when they get on those talk shows -- immediately shouted down, without an opportunity to even get a word in -- is just absurd.
   Alan Colmes! He's a red herring. He's just there for window dressing. Sean Hannity is particularly in my sights -- that sanctimony, when those eyebrows start arching, and he starts wagging his finger.

   Let's talk about Bill O'Reilly, too. 
   Since when does being a reporter from “Entertainment Tonight” on the Michael Jackson plastic surgery beat all of a sudden, overnight, allow you to start making official pronouncements about politics as if it's gospel?
 

Anyone else in the news media you’ve got it in for besides Fox News stars?

  

I saw Ann Coulter on “Hannity & Colmes” last night and I had to switch the channel. It just made my blood boil. I've got a shirt lined up for her! 
   So Ann Coulter, and especially [congressman-turned-cable news commentator ] Joe Scarborough.  He resigned and got a job at MSNBC. You'll notice, although he never was in the military, there are two shots of him in military uniform. No one else has pointed it out, but I plan on making hay out of that.
   He's trying to out-O'Reilly O'Reilly, and it's so transparent. 

What’s going on with your legal defense?

   I've been overwhelmed by the amount of legal advice I've been offered.
   In a few days we'll have chosen our counsel, and we're going to take it all the way. Fox News has painted themselves into a corner. This story has gotten legs just by whatever we and everyone else has been doing. If their competitors get ahold of the story, it's going to be very bad from there. It's a lose-lose situation for them. They'll take it all the way, or they'll back off, in which case they lose face.
   I wish I could divulge more about our present legal situation, but within the next five to six days you'll be seeing it in the national media.
   Fox thought they would spend 37 cents on a letter to some little company in Austin that would just roll over. Well, they're getting a very, very big surprise.

   I must admit, I've got quite a lot of personal satisfaction from not only being a thorn in their side but also from making a profit doing it.

July 1, 2003© 2003 Media Life

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-Jim Jazwiecki is a New York writer and an occasional contributor to Media Life.

[weegee]

His shirts cannot use the likeness of commercial trademarks or public likenesses. If he uses them in a magazine (like a one page parody), then he is engaged in first ammenment speech. Here he's operating a commercial venture (and he'd better be paying his taxes).

Since he's engaged in commercial transactions, it's not speech. He's marketing a product which could have the FOX logo (which is trademarked) or Ann Coulter's picture. Is he even licensing the photos he plans to use on his shirts? This is why the first approach to these bottom feeders is "Cease and decist". He chose to broadcast his predicament and sell more shirts as a response (which shows willful disregard for the cease and decist notice).

Of course his site claims copyright on all of "his" works.

He also sells some authorized Ted Rall merchandise.

Remember that even Rush said that the EIB "university" shirts were unauthorized. It's not just about "squashing" free speech, it's about protecting copyrights, trademarks, and likenesses.

His bandwidth is strained and I found his site and images to be painfully slow loading.

[berserker]

Guess this guy doesn't watch CNN "the most trusted name in news."

Actually, one of the shirts does mock CNN's logo with a shirt proclaiming the PNN - Pentagon News Network. I guess FoxNews is just more sensitive to this form of t-shirt mockery, or maybe the executives at FoxNews really don't have any sense of humor.

[drjimmy]

or maybe the executives at FoxNews really don't have any sense of humor.
Au contraire. After all, they hired Geraldo.

[weegee]

Think he's put out a SeeBS News shirt?

How about Viacommie?

[weegee]

Just because he's mocked a network is no sign that he's actually watched it. Easier to follow the talking points of Pacifica and CNN Europe than for him to decide on his own.

[tgslTakoma]

This guy's "Faux News" shirts have been seen on some of the left-wing extremists who were bused into DC for the so-called antiwar peace marches.

At the Code Pink-o Womyn for "Peace" Assault & Battery March and Rally on March 8, 2003, Exit148 got some shots of this babe, who felt it was her right to get in Doctor Raoul's face and try to argue with him. At times, she stood with her face literally just a few inches from his. Doc tried to shoo her away several times, but like poop on your shoe - she just stuck there. She was a most-annoying little pest that day; and when she realized that Exit148 was taking pix of her, she got kind of snitty about it. After Doctor Raoul managed to get her to move away from him, she then made the mistake of trying to engage Cal, who was happy to oblige. Every argument the woman tried to pose was quickly and expertly dismembered by Cal; and the woman finally walked away, defeated.

The folks who are buying the shirts are no doubt as reality-challenged as this dame was. It will be interesting to see how the Fox legal effort turns out.

[Dont Mention the War]

Nonsense. The spurious use whether intentional or otherwise neither invalidates the mark nor diminishes it; have you never heard of perception?

Have you heard of the Federal Trademark Dilution Act? Perception is irrelevant. The law specifically states that "the likelihood of confusion, mistake, or deception" is meaningless. All that matters is that an attempt at dilution is occurring.

There are two ways dilution can occur: "blurring" or "tarnishment." I don't really think blurring would count in this case, so I won't get into it, but tarnishment sure does. The courts define tarnishment as "an unauthorized use of a mark which links it to products that are of poor quality or which is portrayed in an unwholesome or unsavory context that is likely to reflect adversely upon the owner's product." That is PRECISELY what the Agitproperties guy is doing.

Because the Agitprop guy did this to intentionally dilute the power of the trademark, he is risking a severe butt-kicking in court:

Ordinarily, only injunctive relief is available under the new law. However, if the defendant willfully intended to trade on the owner's reputation or to cause dilution of the famous mark, the owner of that mark may also be entitled to other remedies available under the United States Trademark Act, including defendant's profits, damages, attorneys' fees, and destruction of the infringing goods.

Those "damages" can be treble damages, by the way.

Oh, and you can forget the "First Amendment" BS. The law specifically allows for three cases in which the First Amendment trumps the law:

(1) "fair use" of a mark in the context of comparative commercial advertising or promotion;

(2) non-commercial uses, such as parody, satire and editorial commentary; and

(3) all forms of news reporting and news commentary.

I made it very clear in my original thread that it is the fact he is SELLING the t-shirts that will be his undoing. Any First Amendment protection falls apart when the only point of the so-called "political speech" is to turn a profit via the unauthorized use of someone else's protected trademark.

If Mr. Agitproperties wants to GIVE his t-shirts away, more power to him, and the courts will back him up. When he's just trying to hide behind the 1A in order to protect his newfound way of STEALING, the courts are going to tear him to shreds.

[7DayRepo]

It's just free publicity for Fox News. Doesn't matter what they say, as long as they're talking about you.

[Dont Mention the War]

I don't agree with the shirts, but parody/political satire is protected.

Not when it's the use of a registered trademark for commercial purposes without the consent of the trademark owner, it's not. The guy is not trying to make a political statement; he is trying to make a profit. That changes EVERYTHING.

Besides, any trademark violation can be turned into a "political" arguement; all the violator has to do is make some outlandish (and even blatantly false) claim about how the company whose trademark he's stolen is somehow "making kids work in sweatshops in China for 30 cents a day," or perhaps "doesn't pay women the same salaries it pays men," and voila, suddenly it's "protected speech?" Horsepuckey. The courts aren't that stupid.

O'Reilly is a different case. He's fair game in terms of what the shirt depicts.

O'Reilly's fair game, but that shirt too includes a giant depiction of what is obviously a completely unadulterated FNC logo. I don't know whether the courts will allow it just because the shirt is designed so that you can't see the word "Fox" in it.

In the end, the O'Reilly shirt doesn't matter anyway. The damages for the "Faux News" shirt alone will bankrupt this guy.

[Dont Mention the War]

Sorry, but SCOTUS unanimously disagrees with you. Look here.

No, that's a copyright violation case you linked to. This case is about trademark violation, a completely different area of the law. mhking did make a mistake when he said "FNC has to protect its copyright." He should have said "FNC has to protect its trademark." We covered that earlier up in the thread, though.

[Straight Vermonter]

No, that's a copyright violation case you linked to. This case is about trademark violation, a completely different area of the law. Ok then refer to Mattel, Inc. v. MCA Records for the exact same outcome on a case that is specifically about a parody of a trademark. This is the US 9th circuit though not SCOTUS.

[Dont Mention the War]

Of course his site claims copyright on all of "his" works.

He's going to run into trouble there, as well, because it can be proven in seconds that neither the phrase "Faux News" nor the taglines "We Distort, You Comply" or "Pentagon News Network," were invented by Mr. Luckett or anyone else on his staff. Google shows that "Pentagon News Network" has been around since at least January 1991. "Faux News" goes back at least to August 2000 (and probably earlier; I think I messed up that search). "We Distort, You Comply"? November 2000.

Attempting to copyright ideas in the public domain is not very smart.

Agitproperties is COMPLETELY SCREWED, and deservedly so.

By the way, why does Agitproperties not offer an MSNBC t-shirt? Could it be because they already tried, MSNBC sent them a cease-and-desist, and Agitproperties totally caved in because they knew nobody would support them in a fight against a LIBERAL news network?

WHERE IS THE MSNBC T-SHIRT, MR. LUCKETT?

[randog]

All trademark violations brought to the attention of the company that owns the trademark must be contested, or the company will LOSE THE TRADEMARK.

Glad to see someone finally point this out.

[martian_22]

It's not that the libs are "shouted down without getting any words in". They're not getting away with carpet bombing a bunch of one-liner lies to set-up presupposition....and then changing the subject.

Answering a direct question is sudden death for these people.

[tet68]

The way that liberals and left-wingers are treated when they get on those talk shows -- immediately shouted down, without an opportunity to even get a word in -- is just absurd.

When was the last time he watched TV...........1954 ??

[xm177e2]

I think FOX is going after them on purpose just so they get more publicity. When most people see the anti-FOX shirts, they think "hey, I've watched FOX, and I'm not a Nazi... this kid is nuts." The bigwigs at FOX probably figure this helps them out.

[Future Useless Eater]

so why not counter by BUYING and PROUDLY WEARING a shirt from the Fox News SHOP?

[Old Professer]

The courts define tarnishment as "an unauthorized use of a mark which links it to products that are of poor quality or which is portrayed in an unwholesome or unsavory context that is likely to reflect adversely upon the owner's product." That is PRECISELY what the Agitproperties guy is doing.

Now one must define unwholesome or unsavory. You go on to make a legal point about the selling of the t-shirts as though that somehow proves that Fox "had" to issue a desist request but you stopped there.

What you haven't done is show that the trademark would be lost by a failure to act on the part of Fox.

If this were to proceed to court many arguments could be made and I would hope one of them would be whether the trademark "replica" was accurate enough to be confused with the true trademark but I merely pointed out that Fox need not have made a big deal of this unless they were prepared for adverse publicity.

[Old Professer]

I'll wear shirts with advertising on them when the guy advertising pays me to wear them.

[Farnham]

Shoulda just left it alone. It would have died.

Nah!! This is showbiz. They just want to make sure they spell FOX right. The only people this guy is going to sell to wouldn't watch Fox anyway. Threatening a lawsuit has gotten the a million dollars worth of exposure. People will pressure cable systems to carry FOX just to see what the bruhaha is all about.