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To avoid “substantial damages,” Fox News sues to make one thing clear: It did NOT endorse a Democrat.

Published onNov 16, 2010
To avoid “substantial damages,” Fox News sues to make one thing clear: It did NOT endorse a Democrat.

The election is over. The results are in. The winners are headed to D.C. and the losers are looking for jobs.  However, there is still some unfinished business between a certain cable news network and the Secretary of State in Missouri.

Back on September 15, 2010, Fox News Network, LLC (FNC) and Christopher Wallace filed a complaint against Robin Carnahan for Senate, Inc., in the Western District of Missouri.  FNC alleged, among other things, copyright infringement.  What could the Carnahan for Senate campaign have done to upset the “fair and balanced” executives over at FNC?

Apparently Carnahan’s Senate campaign started running this ad on television (the ad is still online as of now).  The complaint alleges that this 30-second attack ad uses footage from a 2006 interview between FNC journalist Chris Wallace and Carnahan’s opponent, Roy Blunt (R-MO). The Carnahan campaign selected only questions and comments from Wallace without showing any of Blunt’s responses.  For example, Wallace says at one point “you have to show you’re the party of reform” and then the clip shows highlights (or perhaps lowlights) of Blunts political career and describes his financial connection to disgraced lobbyist Jack Abramoff.

According to TPM, this may be the first time a media company has actually taken a political campaign to court on a fair use copyright claim.  According to FNC, they filed the lawsuit because they “cannot allow it to appear as though Chris Wallace is endorsing any candidate.”  For example, the ad finishes with Wallace saying “But some question whether you are the man to do that,” which could be used to infer that Wallace and FNC question whether he is the man to clean up and reform Washington.  Though it is certainly possible that viewers could interpret the ad in such a manner, according to Ben Sheffner, an attorney who specializes in copyright issues, “reputational damage is just not a cognizable copyright interest.”

Further, FNC also alleges in the complaint that Carnahan is profiting “commercially without paying the traditional price” from using the interview footage.  Though recent Supreme Court decisions (like Citizens United) are allowing political campaigns to become increasingly commercial, courts have traditionally rejected the idea that campaign speech is “commercial,” even when used to raise money.  When MasterCard sued Ralph Nader for using their copyrighted “Priceless” in a campaign ad, the court went so far as to say that, if it found such speech to be commercial, then “all political campaign speech would also be ‘commercial speech’ since all political candidates collect contributions.”

It should also be noted that this is not the first time FNC has sued a Democrat allegedly using its copyrighted or trademarked materials.  In fact, in 2003, FNC sued author and now Senator Al Franken (D-MN) over his use of the FNC slogan “Fair and Balanced” on the cover of his book: “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.”  Similarly, FNC tried to argue that people might see the title and believe it was a FNC product.  However, the federal judge accused FNC of “undermining the First Amendment” and said the case was “wholly without merit.”

So, relying on precedent and FNC’s history, it is hard to like FNC’s chances of winning this lawsuit.  For what it is worth, after FNC sued Franken, his book shot to the top of the best-seller list.

*Rob Abb is a second-year law student at Wake Forest University School of Law and is President of the International Law Society.  He holds a Bachelor of Arts and Science in Political Science and Asian Studies from the University of Michigan.  Upon graduation in 2012, Mr. Abb plans to practice international law.

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