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Use of Barbie in photographs permitted

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    NMU         CALIFORNIA         Copyrights & Trademarks         Oct 5, 2000    

Use of Barbie in photographs permitted

  • The First Amendment does not take a back seat to copyright and trademark infringement claims, a federal district court ruled.

Mattel may not stop a photographer from using Barbie in photographs, a federal judge in California ruled on Sept. 25. Mattel’s copyright and trademark rights in the doll do not usurp the photographers’ First Amendment protections, U.S. District Judge Ronald Lew of Los Angeles held in denying Mattel’s claim for a preliminary injunction.

Mattel, makers of the popular doll Barbie, sued Tom Forsythe in August 1999 for copyright and trademark infringement after he used the dolls in a series of photographs as a commentary on gender roles and image ideals. Forsythe’s series, “Food Chain Barbie,” parodied Barbie as a model for young women of beauty and perfection.

Forsythe placed Barbie in various food preparation settings, including posing the doll in a malt mixer and in a toaster oven. Forsythe also photographed impaled Barbie heads in an “allusion to Shakespeare’s reference to being ‘hoisted on your own petard,'” Forsythe said in an affidavit. Some of the photos posed Barbie in a sexually provocative manner. Forsythe toured the country with the photograph collection and sold postcards and 8″x10″ prints of the images.

A preliminary injunction is typically granted when the moving party can show it would suffer irreparable harm if the injunction is not granted and when the judge rules it is probable that the moving party will be ultimately successful in the case. Judge Lew ruled orally that Mattel did not prove that it was likely to be successful on the merits of its case.

A court date for the case has not been scheduled, according to a spokeswoman from the ACLU of Southern California, which served as counsel for Forsythe.

Mattel claimed the photographs violated its trademark rights in the doll by causing consumers to mistake Forsythe’s photos for true Barbie advertisements. Mattel also claimed Forsythe diluted or tarnished the Barbie trademark in photographs it described as “crudely sexual and violently misogynistic.” For example, Forsythe photographed Barbie with the blades of a kitchen mixer between her legs.

Mattel also argued it owned a copyright in the head and body of Barbie and that Forsythe violated that copyright by using the doll in his photographs. Forsythe disputed that Mattel was the original creator of the Barbie doll image, citing a German doll he said Barbie was modeled on. Moreover, Forsythe argued that his use of the doll in the photos was “fair use.” Fair use, a defense to copyright infringement claims, permits copyright violations for certain limited uses, such as news and parody.

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


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