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January 11, 2004 - Making Fun of Barbie Dolls

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"Malted Barbie" featured a nude Barbie in a blender. 
"Fondue a la Barbie" depicted Barbie heads in a fondue pot. 
"Barbie Enchiladas" showed several Barbie dolls swaddled in tortillas and roasting in an oven.


This item has been in the press for a number of days and the best summary I've found was in my local paper. 

See 'Lawsuit Barbie' Fails for Mattel
Court upholds an artist's use of the doll in his series of photographs.  
By Christine Steiner, The Los Angeles Times, Wednesday, January 07, 2004

Christine Steiner practices and teaches visual arts law out here in Los Angeles.  Shes a former counsel to the J.  Paul Getty Trust and the Smithsonian Institution and a partner in the law firm, Steiner Feig & Conley, LLP, a law practice that emphasizes business, art law and intellectual property.  She represents museums, cultural organizations, foundations, universities, writers, publishers, living artists, artists' estates, and other arts-related clients.  She is an adjunct professor of law at Loyola Law School, where she teaches visual arts law, and has served as a visiting professor of international art law in law school programs in Florence, Italy, and Cambridge, England.  She was a member of the U. S.  Conference on Fair Use (CONFU) and is General Editor of the co-authored work, A Museum Guide to Copyright and Trademark, published in 2000 by American Association of Museums.   She chairs the Art Law Section of the American Bar Association's Forum on Entertainment and Sports Industries. 

In short?  You don't mess with her. 

Here's the situation:


Although it was titled "Food Chain Barbie," the photographic series by Utah artist Tom Forsythe was not exactly appetizing: "Malted Barbie" featured a nude Barbie in a blender.  "Fondue a la Barbie" depicted Barbie heads in a fondue pot.  "Barbie Enchiladas" showed several Barbie dolls swaddled in tortillas and roasting in an oven. 

Mattel, the company that has been making Barbie for 45 years, was, not surprisingly, displeased by these images and promptly sued, arguing that the public would mistake these exaggerated and suggestive images for authentic Mattel products, thus diluting or diminishing the commercial value of their property. 

But last week, artists everywhere had reason to celebrate when the U. S.  9th Circuit Court of Appeals ruled against Mattel, saying that Forsythe's photographs were parodies of the iconic plastic doll and contained messages about gender roles and consumerism.  As such, the photographs were legitimate free speech and did not infringe on Mattel's copyright or trademark rights. 

The decision is important because overaggressive enforcement of intellectual property rights is destructive to the free exchange of ideas in a democracy.


Now this is a sensitive issue out here.  Mattel in headquartered a few blocks south of LAX and is a source of many jobs and much pride in Los Angeles. 

And I do have a friend who, I assume, sides with Mattel here, as she used to be an executive handling licensing for Mattel - both the Barbie line and "Hot Wheels" products.  She has long argued with me that anyone who even mentions a licensed, copyrighted or trademarked item should only do so with full permission of the creator of the item, and with full payment to the creator for any use.  She argued with me a year or two ago that the Margaret Mitchell estate had every right to block publication of the book The Sun Done Gone - that novel that "reconceptualized" Gone With the Wind.  Her husband further argued that any classical composer who wrote any sort of "Variations on a theme by" was lazy and uncreative, and a thief.  That is, Brahms was no more than a thief, as was Beethoven and Mozart and any others when they wrote variations on someone else's theme.  (See I'm Just Wild About Harry here in Just above Sunset Magazine, Volume 1, Number 5 June 29, 2003)

I don't agree.  And Steiner doesn't agree.


The rights of toymakers and others to profit from their original work must of course be protected.  But at the same time, courts must, as the 9th Circuit did here, balance legitimate property rights against constitutional rights of free expression. 

The tension between these rights is not new. 
Historically, the 1st Amendment has been used to ensure that particular venues remain open to free expression - venues such as public squares, broadcast channels, books, newspapers and, most recently, cyberspace.  Intellectual property law, by contrast, is concerned with safeguarding an owner's property rights and with limiting the unregulated taking of copyrighted and trademarked properties.


There's a reason youll find a Legal Notice in this publication, as here I must be careful. 

The issue is "fair use" of course. 

Steiner explains it this way.


Copyright infringement occurs when a creative work is copied or used without permission.  Trademarks protect commercial products or services, and infringement occurs when a trademark is used without permission and causes a likelihood of confusion between the trademarked product and the unauthorized one. 

But there is such a thing as "fair use," which permits a user to take copyrighted or trademarked materials where the use is in the public interest. 

The fair-use doctrine recognizes that new works draw inspiration from older works and that productive use of older works promotes the progress of science, the arts and literature. 

The Copyright Act identifies these uses as criticism, comment, news reporting, teaching, scholarship and research.  Courts have recognized other uses, such as parody, free speech, free expression and the public good.  For example, quoting portions of books or letters, copying images for study purposes or running copyrighted footage on the evening news would all be considered fair.


And the factors are clear:


The law identifies a four-factor analysis to aid in determining what constitutes fair use: the purpose and character of the use; the nature of the underlying work; the amount taken; and the potential market effect.  Thus, the U. S.  Supreme Court upheld the rap group 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman" because the audience was different, the new song transformed the old with new meaning, and the market effect was determined to be nil.


Yes, I quote a lot here in this magazine and on the blog, and provide links to other items.  I don't think I'm in trouble. 

Ah yes, but what about the Barbie Dolls?


By applying these factors, the 9th Circuit determined that the "Food Chain Barbie" series was a legitimate parody.  Forsythe transformed the meaning and intent of the Barbie doll into new and different work, and consumers were not likely to confuse a naked Barbie in a blender with an authorized Mattel product. 

The 9th Circuit decision is one in a string of cases that have been decided against the toymaker.  For example, last January, the U. S.  Supreme Court upheld the right of the Danish band Aqua to distribute its 1997 song "Barbie Girl," whose lyrics refer to a "blond, bimbo girl. "


Of course, I'm screwed if I'm sued.  My legal costs would bankrupt me. 
Mattel knows this.  In this case -


But the company persisted in using the law to intimidate artists.  Forsythe's legal fees (which may now be reimbursed) were in the millions of dollars.  The chilling effect of monetary considerations cannot be underestimated. 

The court also chastised Mattel for filing abusive discovery demands against two museums whose curators dared to testify on behalf of the artist.


I'm not sure that makes me feel any better. 

As Steiner points out, possibly Mattel is so aggressive in marking its territory because it believes that the product must be saved from all unauthorized activity that might dilute its uniqueness.  Yet it is common sense that a corporate citizen needs not cudgel every trespasser to avoid risking loss of intellectual property rights. 

Maybe so.  But anyone writing about what people are saying has this sword hanging over them.  Franken may have won his suit when Fox News sued him.  But he was sued. 

Ah, if I had more readers I'd worry.


Well, when I posted al this on the blog I did hear from my friend who used to make her living protecting the Barbie licenses down at Mattel.


Ah, Alan, I think you're bating me...  I remember our discussion last summer but have I really long argued with you that "anyone who even mentions a licensed, copyrighted or trademarked item should only do so with full permission of the creator of the item, and with full payment to the creator for any use"?  If that were the case, I would be in deep trouble since I mention licensed products during the course of my work just about every minute of the day.  Maybe you are lucky you don't have more readers!  Watch out for those quotations!

I completely agree with the decision of the 9th Court of Appeals.  Surely what Forsythe does is a parody and only an idiot would confuse her re-creations with a Mattel Barbie for sale at Wal-Mart or Toys R Us.  Further, at this stage of her career, Barbie can use all the publicity she can get.  The poor old gal's sales are falling off the face of the earth these days.  However, Mattel must, as a matter of good business, protect the doll because eventually Barbie will rise again and they want to make sure her reputation is spotless as she continues to become more and more of a classic.  Are they overly aggressive?  Sometimes.

As for The Sun Done Gone (it wasn't The Wind Done Gone?), if I remember correctly, I didn't think that was a parody.  I thought it was an attempt to piggyback off the success and popularity of a classic novel.  I thought it wasn't fair use and could likely cause confusion - and yes, I thought it was lazy. 

Of course I replied that I was bating her.  Just for the fun of it. 


I do tend to think all publicity is good publicity, by the way.  Mattel should thank Forsythe, really.  He may be key to the hypothetical Barbie rebirth.  One never knows.  That thirty-six hour marriage will, after all, only keep the Spears girl selling more albums.  No one is going to forget her now.  And Paris Hilton is more in demand now than ever before.  It's all "attention."   And all "attention" helps.


We'll always disagree about the Mitchell suit.  I cannot see that "as seen by the black folk" version of GWTW as a piggyback - it seems to me to me to be more social commentary than a rip-off. 


And Rick brown in Atlanta offered the perspective of a former news guy:


As someone who, for many years, slaved in the journalism trade, I can tell you these "fair use" and "trademark" issues are always a bitch when it comes to reportage and comment.


When it comes to trademark questions, readers of journalism journals such as Columbia Journalism Review and Washington Journalism Review (which were the main ones back when I was reading such things) couldn't help but notice all these corporate full-page ads exhorting journalists to honor trade and service marks.   I always found this odd, because reporters and commentators are not bound by these restrictions.  Still, manufacturers feel obligated to do everything possible to "protect their marks," just as journalists feel obligated to ignore these attempts. (After all, news folks know they are not trying to compete with Lucas every time they refer to some missile defense system as "Star Wars".)


As for "fair use" of copyrighted material, even if he had legions of readers, I think "Commentator" (or maybe even "Reporter") Alan Pavlik is only in danger of a court possibly ruling against him for his quotes if he were to use them too liberally, especially in any one case, so as to deter readers from reading the original works.  Apparently, it's not as important how much you insert into your story as what damage this does.  (There's that famously cited example of Dorothy Parker's "Candy is dandy, but liquor is quicker," which I think is the complete poem, and for all I know, the title itself.  Yet, this very citation is still considered "fair use" because only by citing the whole tiny work can one make the point that needs to be made.  But I'd also reckon that quoting the piece in its entirety is unlikely to dissuade any potential readers from going out and buying the book.)


Re "Done Gone": (You're right, it was "Wind," not "Sun".)  In fact, although the publisher argued that this was a parody and subject to 1st amendment protection, and although an Atlanta judge slapped an injunction on grounds of copyright in 2001, one month later, a federal appeals court overruled the lower court, saying its actions amounted to prior restraint.  This, along with the fact that the Mitchell family eventually settled the case out of court, seems to support that the book, although maybe not a good one, was indeed a parody.  (Never having read the book but only hearing about it, it all sounded to me like a borderline case that could have gone either way.)


(Re Lazy: That's also usually a close call.  Was Shakespeare lazy for having all his characters strutting around on a stage under the artificial pretense that the audience is not there, simply because someone else had already done this?  Should he have invented his own new art form instead?  Ill go out on a limb and say that, without exception, all art is derivative and that all artists stand on the shoulders of others who go before them.)


But in any event, to argue confusion, the Mitchell family might have had to go the route that Fox News Channel was headed before it failed to prevail in its preliminary injunction hearing against Al Franken (previously discussed here): To continue to pursue the case, the family might have had to argue that readers of "Gone With The Wind" are stupider than your average novel reader, and therefore more likely to think the two books came from a common source.  Now that would have been a fun news item!


Yes indeed. 


And for the record, regarding Ricks "lazy" comment, Shakespeare "stole" his all his plots from other sources.  The sole exception is "Love's Labours Lost" - and that's pretty crappy.  So except for that one play ...  Shakespeare "adapted" every single one of his plots from other sources.  Shakespeare "constructed" every single one of his plots from other sources.  Shakespeare "borrowed" every single one of his plots from other sources.  Shakespeare "improved" every single one of his plots from other sources.  Shakespeare "stole and messed up" every single one of his plots from other sources.  Choose your verb.


Whatever Shakespeare did, he didn't pay anyone any royalties.


Anyway, Phillip Raines had a common sense take on it all:


My first reaction to the link was you gotta be kidding.  Go up against an artist for defaming Barbie?  Kick the lid off a pit of frothing corporate lawyers and ruin someone's day over such a piss-ant issue?  Say it ain't so, Joe! 


It is good to see a judge now and then wades through the pile of paper and throws things out.  Liberty and justice for a varying percentage of people.  That's what we're about here on the fruited plain, or is that plane?


Well, Phillip, folks do like to sue, don't they?


Should Just Above Sunset or the blog As Seen from Just Above Sunset be taken to court, everyone please send advice.