Source: Reuters
By: Sarah Tippit
(LOS ANGELES, CA) — Barbie, the world’s most famous plastic bombshell, is now legally free to pose in some controversial artistic photographs, a federal judge in Los Angeles ruled on Monday in what legal experts called “a blow” to the world’s No. 1 toymaker, Mattel Inc.
U.S. District Court Judge Ronald Lew ruled on Monday that the free speech rights of Utah artist Tom Forsythe — who was sued by Mattel two years ago after he parodied Barbie dolls in a series of photographs meant as a stinging social comment — outweigh the company’s trademarks and intellectual property rights as they relate to the 42-year-old doll.
“The ruling doesn’t mean it’s open season (to exploit products by) Mattel, it means there is a certain amount of breathing room for artists who want to use a commercial symbol that has tremendous cultural meaning, for purposes of artistic expression,” Forsythe’s attorney Simon Frankel said.
Mattel on Monday said in a statement that it was ”disappointed” that the court “failed to consider that consumers and Mattel are being harmed by” the artist’s activities. The El Segundo, California-based company said that it intends to appeal the ruling.
Forsythe’s limited edition photographs were taken in 1998 and use Barbie in an attempt to skewer the stereotyping of women and commodification of female bodies.
Exhibited several times in the Western United States and offered for sale on Forsythe’s Web site (www.creativefreedomdefense.org), they depict, among other images, a “Missionary Barbie,” unclothed on her back with an electric beater pointed toward her body in a suggestive way; ”Barbie Enchiladas,” naked Barbies wrapped in tortillas, covered with tomato sauce, and lying in a baking pan; a ”Heatwave” Barbie who reclines in a toaster oven, a “Malted Barbie,” who peeks demurely out of a milkshake machine, and ”Blue Ice” Barbie, who poses nude in a martini glass.
NOT THE FIRST AND NOT THE LAST
Although they may be offensive to some Barbie fans, the photos nevertheless are allowable under “fair use” laws because they do not constitute commercial use of the Barbie or affect Mattel’s sales, Lew ruled.
In addition, Lew said that Forsythe was not violating trademark law with his Barbie art because Mattel was not able to sufficiently prove that he created confusion among customers over Barbie’s true nature as a child’s toy or that his product constituted a “commercial” rather than “expressive” use of the Barbie doll.
Legal experts called the ruling a “blow” to Mattel and other corporations that routinely sue artists who attempt to use their symbols in creative expression.
“People are aware of the issue of censorship but they are not very sensitized to (widespread) corporate censorship that’s out there limiting artistic expression,” said Forsythe’s lead counsel Annette Hurst who took on the case pro bono and will now try to recover legal fees from Mattel.
“The intellectual property laws do not grant corporations the right to control all artistic speech concerning the role of products and corporations in our society,” Hurst said.
Mattel said in its statement that it was very ”disappointed” that Judge Lew “failed to take into consideration that consumers do not view Mr. Forsythe’s photographs as art or as parody and that a substantial number are confused into thinking that Mattel sponsors his goods.”
The company added: “It is important to note that the court did not rule that others may commercially use Mattel’s copyrights and trademarks. Instead, the court ruled on very narrow grounds regarding this particular use by Mr. Forsythe.”
There are no monetary damages to be paid in the initial ruling.
Forsythe is now trying to raise money to cover his costs. In terms of his art he said he is moving onto other subject matter: “I’m not the first person to parody Barbie and I’m sure I won’t be the last.”
“The judge’s decision is a powerful victory for all feminists who criticize Barbie’s stereotype of women and the unquestioning acceptance that allows Mattel to sell these hyper sexualized hunks of plastic into millions of American homes,” he added.
Attorney Peter Eliasberg of the American Civil Liberties Union of Southern California, which supported Forsythe, called the judge’s decision “a great victory for artists.”
