Fox and Franken locked in title bout

Perhaps Fox News Channel should have tracked Spike Lee’s losing lawsuit against Viacom more closely before filing suit against comedian Al Franken’s forthcoming book, “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.”

Just as Lee’s suit gave the launch of Viacom’s Spike cable channel a free publicity boost, the main beneficiary of Fox’s legal action this week so far appears to be Franken’s book, which, after the deluge of publicity, shot up the Amazon.com bestseller list to No. 1 by Wednesday and held that spot on Thursday. The book won’t be published until Sept. 22.

Fox filed a lawsuit Monday seeking to stop Franken from using the trademarked Fox slogan “fair and balanced” in the title of the book, which is being published by Penguin Group USA’s Dutton. But the action was really more of an attempt by Fox News to support its No. 1 talent, Bill O’Reilly, host of the top-rated prime-time “O’Reilly Factor.”

Still smarting from a verbal dust-up with Franken in May, O’Reilly, according to people familiar with the situation lobbied strongly for the lawsuit.

A spokesman for Fox said O’Reilly, who has his own book, “Who’s Looking Out for You” (Doubleday Broadway), coming out a day after Franken’s, declined to comment. (O’Reilly’s book was ranked 740 on Amazon.)

When Fox supports its talent, it goes all out. In the 8-inch-thick legal filing, Fox notes that “Franken has recently been described as a C-level political commentator who is increasingly unfunny. He’s not a well-respected voice in American politics and appears to be shrill and unstable.”

On the more serious topic of the legal issues, the lawsuit charges that the title “is likely to cause confusion among the public about whether Fox News has authorized or endorsed the book and about whether Franken is affiliated with Fox News Channel.”

While many commentators have seen the suit merely as a publicity machine for the two sides, intellectual property experts have also emerged supporting both Fox and Dutton.

Not only does the book use the Fox slogan in its title, but O’Reilly’s picture is on the cover. O’Reilly has known about the cover and has been seething about it ever since he and Franken got into a shouting match in Los Angeles on May 31 while on a panel at BookExpo America.

Before a crowd of 1,000 attendees, with the session televised live by cable’s normally civilized C-SPAN2, Franken went on a rant against O’Reilly, accusing him of lying about his credentials. O’Reilly came back by calling Franken an “idiot.”

The spat was the talk of the convention, said Charlotte Abbott, book news editor of Publishers Weekly. “People definitely felt that it was one of the more riveting pieces of showmanship at the show,” she said.

Political columnist Molly Ivins was on the panel and watched the feud take off. In a phone interview, Ivins said she sensed the animosity backstage between the men. As she went to shake O’Reilly’s hand, “He took my hand and just threw it away, whereupon I said, ‘Hmmm. There seems to be a situation here.’ ”

O’Reilly had just spotted the cover of Franken’s new book, which shows an unflattering image of O’Reilly. Afterward, during the panel, Franken appeared to be goading O’Reilly into a confrontation, Ivins said. “O’Reilly was sitting there boiling,” she said. “Finally, he screams, ‘Shut up, shut up!’ Oh, believe me, this was not about publicity. O’Reilly was furious. It was clear that he had been mortally offended.”

C-SPAN2 rebroadcast the program the next weekend, prompting three times the usual traffic to Book TV’s Web site, the most site visits in its five-year history, said Connie Doebele, Book TV’s executive producer.

On his morning radio show, O’Reilly subsequently insisted that he was through talking about Franken, who he said was just seeking publicity. But the lawsuit has only generated more chatter, including talk on Fox rival MSNBC. Anchor Dan Abrams on Tuesday introduced a debate on the subject by noting, “Fox News Channel apparently can’t take a joke.”

Franken, on vacation, wasn’t available to comment, his publisher said, but he released a statement saying: “From everything I know about law regarding satire, I’m not worried. But I’d like to thank Fox for all the publicity. As far as the personal attacks go, when I read ‘intoxicated or deranged’ and ‘shrill and unstable’ in their complaint, I thought for a moment I was a Fox commentator.”

Franken may indeed know something about satire; in 1996, his book “Rush Limbaugh Is a Big Fat Idiot” was itself parodied by J.P. Mauro (actually two Mauro brothers) in the book “Al Franken Is a Buck-Toothed Moron,” which features a doctored Franken photo on the cover. The introduction to the book consists of letters purporting to be from Franken’s lawyers, attempting to deny the authors the use of Franken’s picture. Later in the book, the letters are described as fictitious.

Dutton is taking the suit seriously, releasing a statement that says, in part, that, “In trying to suppress Al Franken’s book, [Fox parent] News Corp. is undermining 1st Amendment principles that protect all media by guaranteeing a free, open and vigorous debate of public issues. The attempt to keep the public from reading Franken’s message is un-American and runs contrary to everything this country stands for.”

The controversy won’t hurt either book, said Abbott of Publishers Weekly. “I think it elevated both books to a higher degree of visibility. The kind of visibility that Franken is getting is extraordinary. It surprises me.”