As time allows I will include increasing detail here about how altered barbie art is parody of an icon, which is part of the pop culture and therefore something we as artists can comment on and poke fun at. In the law this is called Parody and it’s part of the Fair Use exceptions to both Copyright and Trademark Laws which protect all our original creations.
The problem was that Mattel would bully artists even though this was incredibly clear and settled law. And most artists, understandably, pack up and go home when Mattel confronts them! But Tom Forsythe was different. And we all are very grateful that he did not back down but sought out legalrepresentation. He found it in the form of the LA ACLW who took the case forfree and talked a major San Francisco law firm into taking the case on ProBono!
It took years of litigation because Mattel played hardball. But then so did Howard Rice Nemerovski Canady Falk & Rabkin! They won on the law – that the artist is protected because this sort of work is parody. They also won attorney fees. Over 1.5 million dollars worth of attorneys fees!
Why so much? Because the court thought that Mattel’s lawyers should have realized what a terrible case they had and should never had brought it! The court said; “Plaintiff’s Copyright claims [Mattel’s attempt to stop the artist] were objectively unreasonable. Plaintiff is a sophisticated entity with access to good legal representation. Plaintiff’s claims were not in an area of unsettled law and had little likelihood of success. Plaintiff’s copyright claims, therefore were frivolous.” (you can download a copy of this opinion here). The court also pointed out that Mattel seemed to be motivated not by lofty ideas of furthering the interests of copyright law, but they were simply out to discourage artists from using Barbie in their Artwork.
Here are some news articles etc on the web that comment on this issue. I have more that i will post as I update the page. The most important thing is to make it clear to Mattel that we know we are protected because Mattel can still approach artists and scare them and the artist’s webhosts! The New York Times: Judge Says Artist Can Make Fun of Barbie June 28, 2004. ACLU Judge Says No to Mattel’s Effort to Stop Artist’s Photographic Critiques of Barbie Monday, September 25, 2000. Preliminary Injunction Denied in Case of Artist Tom Forsythe. San Francisco Chronicle article Mattel Can’t Prevent Man’s Sexy Barbie ArtFriday, February 23, 2001