Matt Drudge Versus "K Street":
Does the Internet Maverick Have a Claim Against the Boundary-Testing Show?

By JULIE HILDEN


julhil@aol.com
----
Tuesday, Nov. 11, 2003

The much-hyped new television show "K Street" is a strange mix. It purports to be a television drama. Yet it also stars real-life figures from politics and journalism playing themselves.

Prominent among the show's stars are Mary Matalin and James Carville. Matalin and Carville, who are spouses both in real life and onscreen, are co-owners of a fictitious lobbying firm. And on the show (as in real life), they offer their political consulting services to Washington's most powerful.

Moreover, the show's guests have included a number of real-life figures who, like Matalin and Carville, appear as themselves. Among them are political figures and journalists such as Washington Post media critic Howard Kurtz and Time magazine's Joe Klein.

Finally, to make matters all the more confusing, on "K Street," plots often intersperse real-life events with fictional ones.

For all these reasons, critic Matthew Continetti has joked that "K Street" doesn't know whether it wants to be "The West Wing," or "The War Room" (a well-received documentary, featuring James Carville and George Stephanopoulos, about the first Clinton Presidential campaign).

This kind of reality/fiction envelope-pushing, however, can have legal consequences. For example, Matt Drudge, of The Drudge Report, is threatening to sue "K Street" for using his name, the name of his website, and images of his website in one of its episodes.

Drudge has been quoted as saying, "This is not a news program! This is an entertainment program and they can't just use [the names and images] without my permission." Drudge has also suggested that he may seek a cease-and-desist order to stop the show from doing so.

"K Street" producer George Clooney has responded that lawyers have advised "K Street" that Drudge has no claim. But as I will argue in this column, those lawyers may well be wrong.

Matt Drudge's Complaint Against "K Street"

The uses about which Drudge is complaining occurred in the show's October 17 broadcast. During that episode, the show touched on a hot, real-life D.C. controversy regarding CIA operative Valerie Plame Wilson

The controversy arose because two government sources leaked to columnist Robert Novak the fact that Wilson was an operative. (Wilson seems to have been singled out for exposure because her husband, a former ambassador, is a critic of the Bush Administration's "weapons of mass destruction" rationale for the Iraq war.) Novak then published the leaked information, thus compromising Wilson's ability to operate as an agent, and possibly putting her in jeopardy.

As John Dean has discussed on this site, leaking an agent's identity is a federal crime. Accordingly, the hunt for the leaker continues, with much speculation over who it might have been. For instance, The Drudge Report posted photos of various Administration officials, including Mary Matalin, over the heading "Who Leaked the Name?"

That's what happened in real life. But on "K Street," the controversy continued, and then segued into fiction.

On the show, viewers saw Matalin's photo, the heading, and The Drudge Report's trademark logo. Then they saw Carville appear to call Drudge and leave him an angry message: "You know damn well Novak said it was a man," he accused, suggesting that even while knowing full well Matalin couldn't have been the leaker, Drudge had falsely and intentionally fingered her.

Now that the facts have been set out, let's examine whether Drudge might have a claim.

Does Drudge Have a Trademark or Copyright Claim Against "K Street"?

Drudge's comments suggest the type of suit he may be contemplating is a copyright or trademark suit.

Doubtless, the name "The Drudge Report" is trademarked. Thus, Drudge has the basic set of facts to support a trademark infringement or trademark dilution claim: unauthorized use of a trademark. That's not the end of the story. There are other considerations, but it is the bare bones of a suit - and that's why you so rarely see trademarks being used on television without permission, except in, for instance, a documentary or news program.

What about a copyright claim? The name "The Drudge Report" probably cannot validly be copyrighted. There's a rule that titles and short phrases rarely can be. (That's why, for instance, two novels can have the same title.)

However, the show not only showed the title of The Drudge Report, but also part of a screen that included the Matalin photo and other text, as well. Thus, it's possible Drudge might claim copyright on each day's -- or hour's, or minute's -- edition of The Drudge Report: that particular "snapshot" of a page. Cyberlaw on copyright is still evolving, and such a claim could conceivably work. Copyright is claimed on expression in a fixed medium, and a page of The Drudge Report is fixed -- at least, temporarily so.

In sum, Drudge certainly has the beginnings of a trademark claim, and may have the beginnings of a copyright claim as well.

Does "K Street" Have A "Fair Use" Defense? The Trademark Claim

So why are the lawyers for "K Street" so confident Drudge won't win? The answer may lie in the "fair use" doctrine. A court's finding of "fair use" is a complete defense to a claim of copyright or trademark infringement. But "fair use" is quite different in the trademark, and in the copyright context, respectively.

In the trademark context, one major type of "fair use" is "nominative" use. To prove nominative use, you must show three things.

First, you must show that you needed to use the trademark to identify the product. Did "K Street" have to use the name "The Drudge Report" to make clear that it was referring to a high-profile Internet political site run by an individual? It's a difficult question. But it's worth noting that The Drudge Report is preeminent, and arguably unique, among such sites -- meaning there's a reason to name it, in particular.

Second, you must not use any more of the mark than necessary. Did "K Street" use more of the mark than necessary? Arguably not; it only used that part of The Drudge Report necessary to the plot of the show.

Third, and finally, you cannot suggest that the trademark holder is endorsing or sponsoring you. Did "K Street" suggest endorsement or sponsorship by Drudge? That's a subtle question.

Certainly, moviegoers and TV watchers have become used to the idea that when a product is shown on screen, the use is consensual. So arguably, the use of a product does connote at least some connection between the trademark holder and "K Street." Whether that connection rises to the level of endorsement or sponsorship, however, is another matter.

The fact that Drudge clearly is not endorsing the show, as his comments indicate, might arguably undermine any appearance of endorsement or sponsorship -- but there's no guarantee that all, or even most, viewers, were aware of these comments. Thus, on this factor, a nominative use defense may fail.

In sum, a case can be made here that the use of Drudge's trademark on "K Street" was nominative use, and thus "fair use." However, it's not an open-and-shut one.

There may also be other "fair use" arguments that "K Street" could employ, but with all these arguments, the show would be on the defensive, for "fair use" is always a defense. Thus, even if "K Street" were ultimately victorious, Drudge's case might linger in court for quite a while -- potentially forcing the show to settle to cut down on its risk of having to pay a large verdict.

Does "K Street" Have A "Fair Use" Defense? The Copyright Claim

As noted above, "fair use" is very different in the copyright context. When it comes to "fair use" of copyrighted material, courts apply a four-factor test, and the factors are different from those applied in a trademark case.

First, courts look to the purposes and character of the use of the copyrighted material.

News uses are virtually always fair uses. Thus, if a news show decides to do a story on The Drudge Report, it can show The Drudge Report without fear. At the other end of the spectrum, advertising uses are very unlikely to be fair uses (and may trigger "right of publicity" liability as well, as I discussed in an earlier column). Entertainment uses are somewhere in between. That's a problem for "K Street," which is somewhere in the hazy area between news and entertainment, and thus it is unclear when its uses of copyrighted material count as "fair use."

In general, a "fair use" is also a "transformative use" -- in which the infringing work creatively transforms the original work, and thus is protected. This kind of fair use allows artists to draw on prior work when they do so in a creative way, rather than simply stealing from it.

But the Drudge Report's comment on Matalin was used in the same context in which it initially appeared; there's nothing transformative about that. Perhaps putting the comment in a television drama is transformative, but generally a truly transformative use affects the copyrighted material itself -- not just its context. And this television drama, as noted above, is partly true to life.

What about "critical commentary" -- another kind of fair use? With this argument, "K Street" might have a chance. After all, Carville-the-character does comment very critically on the use of Matalin's photo. But he doesn't do so in the traditional sense of being a critic -- by, for instance, attacking the photo's quality.

Second, courts look to the nature of the copyrighted work being borrowed from. It's not clear how this factor might apply here, since The Drudge Report's nature is unusual. It offers links to major news stories; sometimes breaks news itself; and operates largely outside the bounds of institutional journalism.

Third, courts look to the amount and importance of the portion used in relation to the copyrighted work as a whole. Here, it seems that "K Street" was careful to use only the material relevant to its storyline. That is certainly a point in its favor. On the other hand, that material was a large part of the relevant day's edition of The Drudge Report -- which cuts against "K Street." Taking a tiny percentage of a work is often fair use; taking a large chunk of it often is not.

Finally, courts look to the effect on the potential market for, or value of, the copyrighted work. Again, this factor applies strangely here. Access to The Drudge Report is free. So how could the use of its copyrighted material on "K Street" damage its value? Perhaps by driving away advertisers, but that would need to be proven.

If anything, it seems "K Street" probably promoted The Drudge Report by attracting more viewers. But it might also have tarnished its reputation -- and that of Matt Drudge himself. And that brings us to the final kind of claim by Drudge that I will consider here: a libel claim.

Does Drudge Have a Libel Claim Against "K Street"?

In addition to trademark and copyright claim, Drudge might also have a suit for libel against "K Street."

Where's the libel claim here? It's simple: Carville suggested on "K Street" that Drudge intentionally published a false statement implying Matalin might be a criminal, when he knew "damn well" that the leaker was not Matalin. Put more simply, Carville arguably accuses Drudge of libeling Matalin. And accusing someone -- especially a journalist -- of a libel, can itself be a libel.

However, because "K Street" straddles the news/entertainment boundary, a libel suit may somewhat be in tension with Drudge's trademark and copyright claim.

For while news shows get sued frequently for libel, they are rarely sued for copyright or trademark infringement. Conversely, while entertainment shows may face infringement claims, they don't often get hit with libel suits.

The dual nature of "K Street" also means a libel case could be an uphill battle. Libel requires a "false statement of fact," and entertainment shows ordinary don't make factual statements. But "K Street" is no ordinary entertainment show. It liberally mixes fact and fiction. So isn't it plausible that when Carville (playing himself) discussed Matt Drudge (referred to by his real-life name) on "K Street," he was making a "statement of fact" about Drudge?

In response, Carville might be able to argue that he wasn't actually accusing Drudge of libeling (or even lying about) Matalin. He could say that on the show (as in real life), Drudge simply put Matalin in a "rogues' gallery" of possible leakers, and raised a question about her. But a question is not a statement of fact. (For this very reason, Matalin herself might have had a hard time suing Drudge for libel, even if she was not in fact the leaker.)

Although this defense is a strong one, there is no guarantee it's a winner. And defenses, however strong, are difficult to rely on in court. It's better to ensure that the would-be plaintiff has no claim in the first place.

The lawyers for "K Street" may think they have the best of both worlds -- an entertainment show's protections from libel suits, and a news show's protections from copyright/trademark suits. But a court might also hold they have the worst of both worlds instead, with all the legal risk of a news show plus all the legal risk of an entertainment show. If so, they could get hit with copyright, trademark and libel claims

-- and face a panoply of legal risks that virtually no other show is exposed to.

At a minimum, "K Street" is walking a dangerous line.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. Kirkus Reviews wrote about 3, "When tragedy intervenes, it's no surprise but shocking nonetheless -- testament to Hilden's rather uncanny abilities." Hilden maintains a website at www.juliehilden.com that includes MP3 and text downloads of the novel's first chapter

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