LL Cool J and Toby Keith Accuse Fox, Sarah Palin of Recycling Old Interviews: Could They Sue?

LL Cool J and Toby Keith are accusing Fox News of passing off old interview footage of the two stars as new content, according to the New York Times and the Village Voice.

Fox announced that former Alaska governor and current Fox News talking head Sarah Palin’s new show “Real American Stories” would include interviews with the two stars. LL Cool J says the Fox interview footage in which he appeared was recorded in 2008; Keith says his is from 2009. Ads for the show merely say that it is “hosted by Sarah Palin,” not that she interviewed the two stars, but some news outlets have mistakenly reported that the two stars will be guests on Palin’s show. According to the Times, LL Cool J has lodged a complaint with Fox, and Fox will not air his segment.

Now for the the legal angle: if Fox had refused to drop the segment, could LL Cool J have sued to prevent its airing?

I believe the answer is yes, based on Palin’s status as former governor, former Republican vice-presidential candidate and rumored 2012 presidential candidate. If she were just another Fox news anchor, and Fox had already obtained LL Cool J’s written consent to use the footage, as we can safely assume is standard procedure at the network, LL Cool J would have a tough time arguing that airing an interview with a public figure obtained for news-gathering purposes would violate any of his legal rights.

Palin, on the other hand, is no ordinary newscaster. Because she is seen primarily as a politician, LL Cool J, who supported President Obama’s candidacy, could plausibly argue that his appearance on her show would amount to a false endorsement of Palin. False endorsement is actionable under 15 U.S.C. 1125(a), one of the provisions of the Lanham Act, the primary federal trademark statute.

Left-leaning singer-songwriter Jackson Browne filed a similar suit against Palin’s running mate John McCain, alleging false endorsement, as well as copyright infringement and violation of Browne’s right of publicity, as a result of a McCain ad that used Browne’s song “Running on Empty” without Browne’s permission. (Read his original complaint here.) McCain moved to dismiss all of the claims and argued that the Lanham Act did not apply to political speech. The United States District Court for the Central District of California denied McCain’s motion to dismiss, and McCain later settled the suit and apologized to Browne.

All of the above, of course, assumes that LL Cool J needs lawyers to defeat foes. After all, this is the battle rapper who “crushed Moe Dee, Hammer, and Ice-T’s curl.” Shouldn’t Sarah Palin know better than to tangle with the Greatest Of All Time?