I’ve had the nastygram sent by the Pantagraph to Michael Moore, complaining about Moore’s alleged partial fictionalization of a Pantagraph headline put up here. (The page will disappear soon, so you might want to avoid linking directly to that page; before that happens, I’ll copy it to a permanent home and update this post accordingly, but I’m on the road now and can’t do that.)
Moore’s Fahrenheit 9/11 apparently portrayed the Pantagraph as saying, in a large headline accompanying a Dec. 19, 2001 news story, “LATEST FLORIDA RECOUNT SHOWS GORE WON ELECTION”; the Pantagraph says that this was a caption accompanying a Dec. 5, 2001 letter to the editor, and thus just the newspaper’s summary of what the letter was saying, rather than the newspaper’s characterization of the actual news.
I’m not sure that the Pantagraph‘s copyright objection quite flies; if Moore only copied the seven-word headline, that might be below the threshold of copyrightable expression. (If it is copyrightable expression, he might still claim that his use is fair, though the fictionalization might be argued to undermine the fair use claim.) On the other hand, it’s not clear just where the copyrightability line is, so maybe the Pantagraph does have a solid claim. And in any event, the newspaper’s argument — if it’s factually well-founded — is a serious criticism of the movie’s accuracy (and, if Moore knew the use of the headline was misleading, his ethics), even if it isn’t a legal winner.
The newspaper might sue Moore on a theory that the movie defamed it, by making a false statement about it that would reduce the newspaper’s reputation among those who know the truth. But I doubt that the newspaper would be able to prove damages, which are generally required for a libel (or trade libel, which is to say libel-of-a-product) claim. And I don’t think this fits within one of the categories of defamation that allow recovery without a showing of damages. This is getting into the nitty-gritty details of state libel law, and I can’t be 100% positive here; but that the newspaper’s letter focused on the copyright claim rather than any libel claim supports my supposition that a libel claim probably wouldn’t fly.
UPDATE: I also doubt that the newspaper could sue Moore on the theory that he used the newspaper’s trademark in a misleading way. If Moore misused the trademark in advertising the movie, that might be different; but if the trademark is in the movie itself, and no-one will be confused into thinking that the Pantagraph endorses the movie, trademark law wouldn’t, I think, be implicated.
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