FauxPolitik

Tuesday, August 12, 2003

More Copyright: But this also brings up an issue that Razor and I have kicked around before. If you hold the copyright on something, does it have to be an accurate description of your product or service? I don't think Fox is any more fair and balanced than, say, NBC or CBS. Can Franken use this as part of his defense? I think what we specifically talked about was Nabisco's claim that Oreos are "America's Favorite Cookie" or some such copyrighted phrase. Now, do they really have to be America's favorite to avoid false advertising? That is, does Nabisco need to prove this claim, or does the copyright of a phrase offer a (limited, perhaps) defense?

In Fox's case, the copyright covers a claim that is, in a sense, unfalsifiable. It requires too much nebulous definition of subjective terms. (How much fairness makes your coverage balanced, and vice versa?) But should that itself be a bar to gaining exclusivity of use? It's something unprovable -- and not original, really, in the sense of a copyrighted work, such as a novel or a cartoon character. Copyright law is notoriously generous these days, both to creators (extended life of rights) and users (liberal fair use readings from courts). I'm curious how this shakes out.

More: Jeff Jarvis has highly qualified readers:

The mark "fair & balanced" is what trademark folk would call a laudatory mark, like "the best burger in town." Such marks are inherently weak and entitled to a limited scope of protection.
There's more, but that's the short version.

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