Artist can toy around with Barbie, rules federal judge

By The Associated Press,
freedomforum.org staff

08.14.01

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LOS ANGELES — A federal judge has dismissed a copyright and trademark infringement lawsuit against a Utah artist who uses Mattel's Barbie dolls in his photographs for social commentary.

"We said the photos were parodies of the Barbie dolls and made fun of the image they project," said Annette Hurst, a San Francisco attorney who worked with the American Civil Liberties Union of Southern California on the case. "That's artistic expression protected by copyright and trademark infringement laws and First Amendment rights."

U.S. District Judge Ronald Lew agreed, ruling yesterday that because the photographs were a parody they did not hurt Mattel's marketing of the doll.

Artist Tom Forsythe of Kanab, Utah, had used the dolls in a series of photos titled "Food Chain Barbie" to criticize "Barbie's embodiment of America's culture of consumption and conformism."

The El Segundo-based toy maker said it would appeal. "Mattel is 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 said in a statement.

Lew also ruled that Mattel did not show it would suffer economically as a result of any consumer confusion.

Forsythe's photographs show Barbie dolls doing household chores or posed in sexual positions. One doll was shown wrapped in tortillas.

Forsythe maintained he had a right to use Barbie dolls to criticize "the materialistic and gender-oppressive values he believes the doll embodies," according to an ACLU statement.

Yesterday's setback wasn't the first for the toy maker in the case, Mattel v. Walking Mountain Productions.

In February, the 9th U.S. Circuit Court of Appeals upheld a lower court's decision to deny Mattel's request to bar Forsythe from using the doll in his photographs. In September, Lew denied a request to place a preliminary injunction against Forsythe barring him from using the doll and selling the photos as postcards.

According to an ACLU news release last year regarding the Forsythe case, Mattel has a history of aggressively seeking to stop "the fair use of Barbie images," including suing a San Francisco artist who sold modified Barbie dolls as artwork, forcing an art Web site to alter its images and suing MCA Records over the band Aqua's song "Barbie Girl."

Hurst, Forsythe's attorney, told Newsday that Mattel had sued about 65 artists in the past five years.

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Toy maker had asked court to grant preliminary injunction in suit accusing artist of copyright, trademark infringement.  02.23.01

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