Carol Burnett and Fox TV: Who's Fair and Balanced Now?

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The rulings contained within District Judge Dean Pregerson's opinion dismissing Carol Burnett's lawsuit against Twentieth Century Fox could have been predicted the moment we heard about the case. If ever there were a textbook example of the "fair use" doctrine in copyright law and the "parody" exception in trademark and dilution law, this was it.

Burnett had sued over a short clip from Fox's animated television show, Family Guy. In the scene, Griffin family patriarch Peter Griffin and his pals visit a porn shop. Upon entering the store, Peter remarks that it is cleaner than he expected. One of his friends explains that "Carol Burnett works part time as a janitor."  The scene shifts to an animated figure resembling the Charwoman character from the Carol Burnett Show mopping the floor next to bin of life-size blow-up dolls and  a rack of XXX movies.  Judge Pregerson explains:

"As the 'Charwoman' mops, a slightly altered version of Carol's Theme from The Carol Burnett Show is playing.  The scene switches back to Peter and his friends.  One of the friends remarks, 'You know, when she tugged her ear at the end of that show, she was really saying goodnight to her mom.'  Another friend responds, 'I wonder what she tugged to say goodnight to her dad,' finishing with a comic's explanation, 'Oh!'"

As crude as the scene may have been, it seemed almost a clip from Mister Rogers Neighborhood compared to the outrageously vicious parody of the Reverend Jerry Falwell that a unanimous U.S. Supreme Court found protected by the First Amendment in Hustler Magazine v. Falwell, 485 U.S. 46 (1988).  In Falwell, Larry Flynt went beyond a coy reference to "tugging" something to a graphic description of the Reverend Falwell having sex in an outhouse with his mother.  Indeed, Judge Pregerson refers to that decision in his finding of parody under the "fair use" doctrine:

Criticism of figures as universally recognized as Carol Burnett "will not always be reasoned or moderate," and may come in the form of " 'vehement, caustic, and sometimes unpleasantly sharp attacks." Hustler Magazine v. Falwell, 485 U.S. 46 (1988). Here, Family Guy put a cartoon version of Carol Burnett/the Charwoman in an awkward, ridiculous, crude, and absurd situation in order to lampoon and parody her as a public figure.

But the irony here is not, as Judge Pregerson sadly observed in his concluding paragraph, that the "new media" engages in "the crude jokes and insensitive, often mean-spirited programming" that would have been shunned during Ms. Burnett's years in the "old media."  Nor is it that "it takes far more creative talent to create a character such as 'Charwoman' than to use such characters in a crude parody."

No, the irony here is that the defendant proudly marching under the First Amendment banner in this case is an affiliate of Fox News, the plaintiff that sued political satirist Al Franken and his publisher for trademark infringement over the title and cover of his book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.  When U.S. District Judge Denny Chin denied Fox's request for an injunction in that case, he not only described Fox's claims as "wholly without merit" but said that Fox New was "trying to undermine the First Amendment."

These litigation flip-flops give a Fox "spin-free" twist on that old saying: "We have met the enemy, and he is us."

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