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Artistic photos of Barbie do not violate copyright

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    NMU         NINTH CIRCUIT         Copyrights & Trademarks         Feb 23, 2001    

Artistic photos of Barbie do not violate copyright

  • An appellate court denied a preliminary injunction that would have barred a photographer from taking photographs of Barbie dolls, some of which depicted her posed in sexual positions.

Mattel, the manufacturers of the Barbie doll, lost another round in an effort to stop a photographer from using the popular doll in his photographs. The U.S. Court of Appeals in San Francisco (9th Cir.) on Feb. 15 upheld a lower court’s decision to deny the company’s motion for a preliminary injunction.

In August 1999, Mattel sued Tom Forsythe for copyright and trademark infringement for his series, “Food Chain Barbie,” which depicts Barbie engaged in household chores, wrapped in a tortilla to be cooked in an oven and posed in sexual positions. Forsythe showed the collection of photographs in galleries across the country and sold postcards and prints of the images.

The El Segundo, Calif.,-based company claims it owns the copyright to Barbie and Forsythe violated the copyright and trademark rights, and also tarnished Barbie’s image.

Forsythe, of Kanab, Utah, maintains that his photographs are a “fair use” of the doll under the copyright law. Fair use permits copyright violations for limited uses, such as parody and news.

“Forsythe used the image of Barbie in a variety of poses to critique the materialistic and gender-oppressive values he believes the doll embodies,” according to a press release from the American Civil Liberties Union of Southern California, which has joined in representing Forsythe.

In addition to asking Forsythe to stop taking and selling the photographs, Mattel wants Forsythe to hand over all the negatives so they can be destroyed.

For a preliminary injunction to be approved, the moving party must show there will be irreparable harm if the injunction is not granted, and that it would likely succeed at an eventual trial. The three appellate court judges concluded that the lower court was correct in ruling Mattel failed to show the possibility of injury or its probable success in the case.

(Mattel v. Forsythe; Media Counsel: Annette Hurst and Doug Winthrop, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, San Francisco) EH

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