[Dont Mention the War]

Unsurprisingly, it's Salon that's doing the distorting here. They're expecting their typically moronic readership to think, "Well, everyone knows parodies are constitutionally protected! Fox News is such a bunch of asses! *sneer!*"

And every single one of those sneering, morally superior liberals is dead wrong. Parodies are usually protected speech, but not when the "parody" consists of nothing more than an altered trademark being sold for profit. In such cases it's nothing more than a standard-issue trademark violation.

(The legal reasoning here is obvious to those of us without a hatred of Fox News who are able to step back and look at the matter objectively. You couldn't legally take, say, a Pepsi logo, slap it on a t-shirt, and sell it for money just because you changed the "i" to an "l". You'd just be stealing from Pepsi, period.)

And that's precisely what Agitproperties is doing here; just selling, for profit, a t-shirt with a barely-altered Fox News logo on it. (They're selling two Fox shirts; let's deal with this more obvious one first.) All they're doing is: 1) Taking the exact Fox News Channel logo and merely changing the "o" in "Fox" to an "au", and 2) Altering Fox's "We Report, You Decide" motto to the lame, unoriginal ripoff "We distort, You comply." These two seemingly minor points are actually quite important, legally speaking; see below. Here's a photo of the shirt in question:

Now, why does it matter that the two changes here are so subtle? Because in order for a parody to be legally protected, one of the conditions that must be met is that it must be "clever." And neither of these two alterations pass that test. The left has been referring to Fox as "Faux News" for years, and the ripoff tagline "We distort, You comply" has references on Google that are at least a year and a half old (and possibly much older; I didn't bother to dig back very far). The t-shirt is lame and unoriginal, and yes, legally that counts very much in Fox's favor.

However, there is a second, completely unrelated reason why this t-shirt is not legally-protected speech: A law that was passed in the mid-1990s called the Federal Trademark Dilution Act. It protects registered trademarks from violation by other businesses. Agitproperties is a business, and it is violating Fox News's trademark. It really is that simple.

And no, the argument that it's supposedly a political statement doesn't hold up. The courts give "greater latitude" for parodies - in other words, choose the First Amendment over trademark rights - when "expression, and not commercial exploitation of another's trademark is the primary intent, and in which there is a need to evoke the original work being parodied." Cliffs Notes, Inc. v. Bantam Doubledav Dell Publishing Group, Inc., 886 F.2d at 495. It is beyond obvious that Agitproperties is not out to "express" itself, but instead to sell t-shirts, a blatantly commercial activity.

It's rather scary how many lawyers, such as Mr. Von Lohmann who is quoted in the above article, either do not understand this issue or are simply willing to - dare I say it - distort in order to get across their desired political message. Von Lohmann said, "The question is not whether they're selling the shirts for profit or not." Well, yes, Fred, it is, to a large extent.

Bottom line: Fox will win this legal matter, either in court or via the usual route, an out-of-court settlement where both sides agree never to discuss the details but will most likely entail Agitproperties handing over most, if not all, of their profits from sales of the Faux News t-shirt and removing it from sale.

And I bet CNN has its cease-and-desist letter out to Agitproperties within seven days. Why? Because not only did Fox have every right to sic their lawyers on Agitproperties, they were LEGALLY REQUIRED to do so. Trademark law demands that the trademark owner challenge every single instance of trademark violation it is made aware of, or they risk losing their rights to the trademark. Any first-year law student knows this. Fox didn't even have a choice but to send out a cease-and-desist order. And neither will CNN.

Now, the second t-shirt, seen above in the graphic accompanying the original article, is a bit tougher to rule on. In general, the graphic appears to be protected speech; public figures such as Bill O'Reilly have little protection against parody; the risk of being made fun of comes with the territory. But again, the FNC logo plays a major role in the artwork. You can only see the words "News Channel," not "Fox," but anyone familiar with the FNC logo will recognize it instantly, and recognize that it has not been altered in any way whatsoever, merely cropped. Would that, along with the mention of O'Reilly's name (who is inextricably tied in with Fox News), be enough to fall under the protection of the Federal Trademark Dilution Act? Could O'Reilly himself sue since, again, the main point of the t-shirt is simply to use O'Reilly's name to make money, instead of making a political statement? I don't have the answers to those questions. But my guess is that Agitproperties is pushing the envelope on this one, and if Fox, O'Reilly or both sue them over the shirt, Fox and/or O'Reilly stand a reasonable chance of winning.

[Dont Mention the War]

If you're a lawyer, know which Freepers are lawyers, or have a legal ping list, please ping them to this post. I'm no lawyer, but I'd like to see to what extent professional lawyers agree with my commentary.

[liberalnot]

o'reilly himself was saying the other day that he angers conservatives and angers liberals.

no one, he said, seems to like a free thinker.

that's right, unpredictable. no formula.

[Carthago delenda est]

Very well thought-out, intelligent reply. I originally thought that perhaps the trademark ripoff would be protected since Agitproperties was not pretending that the trademark was their own, but as you pointed out, Cliffs Notes v. Bantam Doubleday seems to take care of that objection by ruling that even parodies cannot enjoy protection if they are being distributed for profit.

One wonders about the extent to which the general liberal tendencies of judges will influence their judgments in a case such as this. My experience is that most judges swim in a culture of elites whose approval they seek and value, thus tempting them to impose their personal preferences on the public at large. It ought to be interesting to see how this one turns out. Keep us posted.

[per loin]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

[auntdot]

Good grief.

Even if I accept your argument, and heck, I am no lawyer, I see no real offense here.

Those who see the shirt and admire O'Reilly will continue to do so, those who do not will have a chuckle.

I see no harm and no foul.

Get a life.

[arasina]

Is the Spike Lee v. Viacom a similar suit? It will be interesting to see which side wins in each of these.

Judge Changes Channels On Spike TV Case
The saga of Spike vs. Spike continues: New York State Supreme Court judge Walter Tolub on Monday proposed a July 7 non-jury trial exclusively to weigh whether average viewers would identify Spike TV, the planned new name for Viacom's TNN, with director Spike Lee, who contends they would and has sued to stop use of the name. Viacom immediately agreed to the trial, and Lee has until today to do so. If he doesn't, a jury trial would be held later this summer. (USA TODAY)

Spike Lee Must Post $2.5M Bond In Lawsuit
NEW YORK (AP) - Spike Lee, who's suing to stop Viacom International from renaming its TNN cable channel as "Spike TV," must post a $2.5 million bond to cover the media giant's costs if it wins the case, a Manhattan judge said.

Lee had posted a $500,000 bond June 13 after winning a temporary injunction against Viacom's plan to rename TNN. State Supreme Court Justice Walter Tolub gave him until Thursday to post the additional $2 million.

The 46-year-old director of films including Malcolm X and Do the Right Thing got the injunction after claiming that Viacom, owner of the CBS network, MTV and Showtime, was renaming TNN in a deliberate attempt to hijack his name, image and reputation.

On Tuesday, the judge revised the amount of Lee's bond after hearing testimony from TNN vice president Kevin Kay that the network had lost millions of dollars since the injunction and could lose millions more before the case goes to trial Aug. 18.

[judgeandjury]

"Fox expected a tiny little company in Austin, Texas, to just roll over. This is definitely without a doubt a First Amendment issue. Americans should be free to speak their minds," says Luckett.

Luckett is, definitely without a doubt, not the brightest pup in the litter. He doesn't seem to understand the concept of trademark infringement, which has nothing to do with free speech rights. Hopefully a judge will be nice enough to explain it to him in a court of law.

[Travis McGee]

ping

[TheOtherOne]

Bottom line: Fox will win this legal matter, either in court or via the usual route, an out-of-court settlement where both sides agree never to discuss the details but will most likely entail Agitproperties handing over most, if not all, of their profits from sales of the Faux News t-shirt and removing it from sale.

100% wrong. Stop trying to play a lawyer online, it does not suit you. You may want to finsh law school first.

[TheOtherOne]

It is beyond obvious that Agitproperties is not out to "express" itself, but instead to sell t-shirts

Oh, "beyond obvious" well then, you must be right! Creating facts is always the easiest way to make a case.

[Sandy]

Your analysis is way off. First of all, trademark infringement and trademark dilution are two different things. The shirts aren't infringements because there's no way that consumers are going to be confused into thinking that these shirts are a Fox News product. As far as dilution goes, even if the shirts do cause dilution--highly doubtful anyway--the Federal Trademark Dilution Act specifically states that noncommercial use of a trademark, i.e. non-commercial speech, shall not be actionable. For 1st Amendment purposes, non-commercial speech that happens to be packaged and sold for profit (music, art, parodies) is not the same thing as commercial speech, which is speech that proposes a commercial transaction (eg., advertisements).

[Tolerance Sucks Rocks]

In a letter dated June 19, 2003, Christopher Silvestri, senior counsel for the network, accused Agitproperties.com of trademark infringement and ordered the company to stop selling the shirts.

Waaaaaaaaaaaaaa...

[dark_lord]

I guess this is a warning to any FReepers who want to sell "Communist News Network" tee shirts......

[Dan from Michigan]

It's parody

And these ambulance chasers need to be slapped in the side of the head. I don't care if it is right or left.

Ambulance chasers SUCK.

[Xenalyte]

Although the T-shirt peddlers say that they're just trying to make enough money from the shirts to keep their tiny alternative media site up and running, could they be prosecuted for profiting from Fox's trademark?

This seems like the key to me. Is profit actually being made? Could one argue that making enough to run a Website constitutes profit?

[nutmeg]

FoxFan ping!

Please FReepmail me if you want on or off my infrequent FoxFan list.

[weegee]

Here's the Salon Stock Deathwatch.

Seems right for them to be profiling liberal bottom feeders.

[krb]

Hahaha...I think it's funny. I don't agree with them, but they are damn creative.