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Judge OKs legal fees for artist critiquing Barbie

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Judge OKs legal fees for artist critiquing Barbie

  • An artist’s use of Barbie dolls in photographs did not violate copyright laws, and Mattel must now pay his fees in defending the company’s lawsuit.

June 29, 2004 — A photographer whose work depicted Barbie dolls in positions intended to question gender and political ideals will receive nearly $2 million in legal fees after a five-year copyright battle with the doll’s manufacturer.

Tom Forsythe, a Utah artist and photographer, successfully defended his right, in district court and on appeal, to use the dolls for the purpose of parody and commentary. Forsythe said his photographs of the dolls depict their embodiment of impossible beauty.

Mattel sued Forsythe in August 1999 for copyright and trademark infringement based on his use of the dolls in a series of 78 photographs.

Judge Ronald S.W. Lew of U.S. District Court in Los Angeles ruled in favor of Forsyth in 2001, but did not award him attorneys fees. A three-judge panel of the U.S. Court of Appeals in San Francisco (9th Cir.) upheld the ruling in 2003, calling the trademark infringement claim “groundless and unreasonable.” However, the appeals court sent the case back to Lew to reconsider legal fees.

On June 21, Lew ordered Mattel, Inc. to pay Forsythe’s legal fees totaling more than $1.8 million.

“I would have felt vindicated if I had won only the legal decision, but it’s far more important now that I have the fees,” said Forsythe, who exhibited and sold his work. “It’s one thing to have the right to defend yourselves and speak, and it’s another to have the means to defend it.”

Forsythe said his photographs were intended to be an “entertaining and insightful social commentary” with comedic yet political implications that also involves gender issues. Some of the photos depicted Barbie in a sexually provocative manner, while others showed dolls posing in or near kitchen appliances such as a toaster oven and a malt mixer.

The photos started as a statement about advertising, using Barbie as an image of “crass consumerism,” Forsythe said, but then turned into a message about the Barbie doll itself.

“Barbie dolls have been a pervasive marketing and cultural icon for over 40 years — they’re issued with every imaginable occupation and every imaginable accouterment for every occupation,” he said. “Once I started with the precarious positions, I realized how impossible the doll is for people to emulate, and it quickly turned into an examination of the impossible beautiness [sic] the doll embodies.”

Mattel claimed Forsythe’s use of the dolls in the photographs violated its copyright, and its trademark rights were violated because consumers could mistake the photos as advertisements. The trademark was tarnished, Mattel argued, in photographs it described in the lawsuit as “crudely sexual and violently misogynistic.”

The photos followed the theme “Barbie’s power as a beauty myth,” and were intended as a parody or commentary and thus fair use of the doll’s image, Forsythe argued. Work that criticizes and comments on another’s work is protected by law as fair use of copyrighted materials.

The Ninth Circuit found that Forsythe had “created the sort of social criticism and parodic speech protected by the First Amendment and promoted by the Copyright Act.”

(Mattel, Inc. v. Walking Mountain Prods.; Counsel: Douglas Winthrop, Howard, Rice, San Francisco) CZ

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