Sunday, February 19, 2006

Heeere's the Truthiness...®

The Trademark Blog argues that Stephen Colbert should file a trademark application on "truthiness" as a source identifier of his persona, in the same way that Johnny Carson successfully argued for rights to "Here's Johnny" under his right of publicity (Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir, 1983)).

However, the short post doesn't go into several substantive differences that might be crucial in distinguishing between the two fact patterns. For one thing, "truthiness" is a single word, rather than a phrase. Also, "Here's Johnny" contained an actual reference to Carson's name, lending weight to its status as a source identifier. "Truthiness" is also found in the Oxford English Dictionary with references to the early Nineteenth century, and the Macmillan English Dictionary's website recently featured "truthiness" as its word of the week (read all about the latest developments on "truthiness").

And, as the court emphasized, Johnny Carson had been associated with "Here's Johnny" for decades prior to the competitor's use; and the toilet maker even stipulated at trial that the public associated the phrase "Here's Johnny" with Johnny Carson, and that the toilet maker had chosen the term because of that association. (What ever happened to zealous representation...)

Colbert undoubtedly revived the word and gave it a new definition, but it's still an established word in the English language. That's not definitive, since it had definitely lapsed from common usage, and even in the first place was rare or dialectal, says the OED; there's a strong argument that the word "truthiness" had been abandoned from the public domain and was available to be appropriated as private intellectual property. The argument is even stronger if you argue for truthiness to be proprietary only as applied to Colbert's product or service, of an ironic news commentary program, in the same way that the word "fun" is proprietary to Carnival Cruise Lines as applied to advertisements for cruise ship services ("The Fun Ships®" etc. ...)

On the other hand, "truthiness" has already been carried away by multiple published sources in non-Colbert related discussions
(again, see here...), so Colbert's claim on the word under trademark or publicity right is attenuating rapidly - if he's going to claim it, he'd better do it soon - although it developing other associations would not be dispositive, as the court emphasized relative to Elroy "Crazylegs" Hirsch.

On yet the other hand, Colbert has acted quite vigorously to defend his association with the word... after the AP ran a story about "truthiness" being selected as the Word of the Year by the American Dialect Society without mentioning Colbert (not in the version of the story that syndicated nationally anyway), Colbert took time on each episode of his show the entire following week to lambast the AP for omitting reference to him - and got both the AP and the individual reporter each to run another story about Colbert's indignation and insistence that "truthiness" be associated with his show as its source. Outstanding tactics for preserving his claim!

But, one further issue: Colbert's entire campaign of indignation at being omitted from association with truthiness, including his comments as quoted in the later AP story, were all done in character, as the Stephen Colbert the blustery right-wing blowhard pundit TV show host character - which is entirely separate and quite different in practice from Stephen Colbert the person and actor (who is left-leaning, far friendlier, and far more easy-going). While it makes perfect sense for Colbert the character to go after a trademark right in "truthiness" like an attack dog, it's less certain Colbert the person would.

So, if he goes after a trademark right to the word "truthiness", it might be the first time a trademark is sought not just for a fictional character, but by a fictional character.

How might he exercise a legally valid trademark right in "truthiness"? I imagine, not to go after The New York Times, the Chicago Tribune, or The Oprah Winfrey Show using it (with attribution to him, as they have) to further his commentary, with serious application to real-world issues. But, he might use it, hopefully, to keep it from being twisted around in the service of precisely what he intended to excoriate with it - as tries to do, co-opting both truthiness and 1984 (!) to recycle banal condemnations of... political correctness.

That is at least, if not far more, damaging to Colbert's interests, as a port-a-potty with a "Here's Johnny" logo was to Carson's; it presents the real likelihood that persons unfamiliar with the Colbert Report will stumble on their first exposure to "truthiness" in the work of a Washington "Times" columnist and assume this right-wing usage accurately represents the views of the Colbert Report, therefore discouraging the potential interest of Colbert's potential audience. This is fundamentally different from the usage by the New York Times and the Chicago Tribune, which have accurately represented "truthiness" and its identification with the Colbert Report, as intending to criticize the Harriet Miers nomination and the invasion of Iraq in particular, and incompetence, deceptiveness, and anti-intellectualism in general.

Ultimately though, this is the most crucial distinction between "truthiness" and "Here's Johnny": "Here's Johnny" was misappropriated for purely commercial use; "truthiness" has mainly been used in discussion of political and social issues. Therefore, the public has a compelling interest in continuing to use the word "truthiness" under statutory fair use - let alone the First Amendment, which can be avoided. To exclude the public from free use of "truthiness" in the way it's been used would be to hinder the public's interest in free discussion of compelling issues, of the Millsian free market of ideas, that is essential for a democracy.

On the other hand, "truthiness" T-shirts have popped up, and was registered the very day Colbert first introduced the word; and the Colbert Report already had a website, and Colbert-themed T-shirts for sale on the website, before the show premiered. The T-shirts didn't use the word "truthiness", but they revolved around a similar theme: one said "The Colbert Report: Truth with a Capital "C"", while the other said "Keep your "facts"; I've got Colbert". A video segment of the monologue in which "truthiness" was introduced was one of the first videos posted on the website. Therefore, where others have only a commercial interest in selling T-shirts or providing website services, they would be competing directly with the Colbert Report in an area of potentially purely commercial interest and without a substantive fair use defense (depending on how the competing T-shirts and website are done), and Colbert should be able to exclude them from using "truthiness" according to his right of publicity.

Colbert's best way to protect that right would be to hurry and file a trademark application. This would give him an advantage over Johnny Carson, who, the court noted, never registered "Here's Johnny" as a trademark.

NOTICE: This blog is intended as generalized commentary, not as legal advice. If you require legal advice, seek out the counsel of an attorney qualified in your jurisdiction.

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