In a feat of Olympian hypocrisy, Fox News has filed a lawsuit against Robin Carnahan, the Democratic candidate for senate in Missouri. The network that regularly rails against the excess of litigiousness in American society, is alleging that Carnahan’s ad infringes on their proprietary property.
The ad in question has been temporarily removed from Carnahan’s web site, and YouTube as well, but you can still view it here. The offending content was a clip of Carnahan’s opponent, Roy Blunt, in a 2006 interview with Chris Wallace on Fox News Sunday. Wallace is seen asking whether Blunt is the right man to “clean up the House” given his financial ties to convicted felon Jack Abramoff, and his efforts on behalf of the tobacco industry despite his romantic relationship with a tobacco lobbyist.
In addition to copyright infringement, Fox alleges violation of privacy, misappropriation of Wallace’s likeness and – I kid you not – that the ad is “compromising its apparent objectivity.” This begs the question, apparent to whom? The filing itself (pdf) begins with a paragraph that contradicts Fox’s assertion of objectivity:
“In a smear ad against political rival Roy Blunt, Defendant Robin Carnahan for Senate, Inc. usurped proprietary footage from the Fox News Network to made (sic) it appear – falsely – that FNC and Christopher Wallace, one of the nation’s most respected political journalists, are endorsing Robin Carnahan’s campaign for United States Senate.”
By characterizing the ad as a “smear ad,” Fox may be setting up a lawsuit against itself for compromising its objectivity. Perhaps what Fox is really concerned about is that the ad may instead compromise their reputation for partisanship, as Wallace’s question actually addresses some very real and damaging facts about Blunt, a candidate belonging to Fox’s favored political party (the GOP). In fact, the ad’s representation of Wallace may actually enhance his reputation for objectivity, and therein lies the real dilemma for Wallace and Fox. They are fiercely attached to their biases and can’t abide anyone casting them as even marginally neutral.
Fox’s complaint is unlikely to prevail in court. The doctrine of Fair Use permits the reproduction of segments of copyrighted material, particularly in works of commentary and political expression. Fox News Sunday is an hour long program, but the clip in Carnahan’s ad is a just a few seconds. And it is clearly political in nature, which grants it further protection from the First Amendment.
However, what propels this lawsuit from the merely frivolous to the strikingly hypocritical is that Fox News doesn’t seem to have any problem with candidates who use their precious, copyrighted material in support of Republicans. In that scenario there isn’t any infringement or harm to objectivity. Take for example this ad for Rand Paul, featuring Fox News contributor Sarah Palin:
The ad contains all of the same elements that triggered Fox’s complaints against Carnahan: infringement, misappropriation of likeness, and harm to apparent objectivity. In the Paul ad, Palin is even making her endorsement on Wallace’s Fox News Sunday. So you have a Fox News employee, on a Fox News program endorsing a Republican candidate in a campaign ad, and yet Fox never filed suit against Paul.
If, as the lawsuit claims, Carnahan “intruded upon Wallace’s private self-esteem and dignity; and caused him emotional or mental distress and suffering.” then why isn’t the same true for Paul’s ad? Perhaps the severity of the mental distress and suffering was such that the aggrieved party became incapacitated and was unable to respond.
News Corpse would like to extend its sympathies to the poor and suffering Chris Wallace, Sarah Palin, and Fox News. This must be so hard on them.
May this lawsuit meet the same humiliating outcome as the one O’Reilly filed against Franken. I just love it when FOX overreaches.
Franken says the lawsuit was literally laughed out court. The judge was actually laughing as he dismissed it.
I wonder what Fox is aiming for. If they were to prevail, then wouldn’t this web site also be infringing on their property? I post things about Fox and their personalities everyday, even quoting verbatim from their videos and articles.
For that matter, isn’t my web site name an infringement that creates confusion? Why don’t they see me? Obviously they are afraid of me.
It’s that whole IOKIYAR – Freedome of Speech is only for them, and as Sharon Angle said, “We want them to ask the questions we want them to ask, so the news is reported the way we want it to be reported.” She actually said that with a straight face, not even realizing, or caring about how bad that sounds! Sigh! They don’t even care how ridiculous they all are anymore!
Sharon Angle thinks she can force the media to ask the questions she wants. Sarah Palin advises Repubs to “speak through Fox News.” This is their idea of a free press.
If she would edit out Wallace and replace his questions with a voice-over announcer, she would have a virtually impregnable defense of fair use, since Fox cannot copyright Blount’s words, which are historical facts, such that any copyright Fox has have in the video itself is too thin to survive a fair use defense.
As for hypocrisy, it’s to be expected from Fox. However, Fox does have the right under the copyright law to allow Murdoch’s political minions unlimited free use of copyrighted material. Just as Jackson Browne and David Byrne can prevent their copyrighted works from being used by politicians with whom they disagree, so can Fox.
I think their case for fair use is fine as it is. Also, they can’t permit some people to use their assets and not others. That would be selective enforcement and would weaken their copyright claim. They can SELL it to others as they chose, but that isn’t the case with Rand Paul’s use.
Do they think they can prevent Dems from using Karl Rove’s bashing of Christine O’Donnell in CT? No way!
Godslayer, you make an interesting, unintended point. You say Jackson Brown and David Byrne have the right to prevent others “..with whom they disagree” from using their copyrighted material. Fox is a news outlet (supposedly), so shouldn’t they keep from having agreement and/or disagreement with ANY politicians, especially considering their “fair and balanced” tag line?
Actually, that was my intended point. Fox News can permit some people to use its copyrighted works while denying permission to others because copyright law allows a copyright holder to selectively enforce a copyright. For example, Metallica never went after its fans for taping its shows (which would otherwise constitute infringement), but did go after Napster for file-sharing of their works because they thought that went too far. Fox News certainly has the right to prevent its works from being used to make it appear that it is anything but a partisan organization. This does not affect its claim for copyright infringement but may weaken the contention that the use of the Blount clip is not fair use.