Topic: The Law
Intellectual Property Rights:
"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. She's 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.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.
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.
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 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.There's a reason in the left panel you'll find 4.) Legal Notice, as here I must be careful.
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.
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.And the factors are clear:
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.
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 on this 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.Of course, I'm screwed if I'm sued. My legal costs would bankrupt me.
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."
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.I'm not sure that makes me feel any better.
The court also chastised Mattel for filing abusive discovery demands against two museums whose curators dared to testify on behalf of the artist.
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.
Posted by Alan at 09:37 PST
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