In a feat of Olympian hypocrisy, search Fox News has filed a lawsuit against Robin Carnahan, cialis 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 )