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Blending Barbie: U.S. Copyright, Trademark and Trade Dress Law and the Net
The United States Court of Appeals for the Ninth Circuit recently dismissed a lawsuit by Mattel Inc. brought against a Utah artist who shot a photographic series depicting a nude Barbie in various food scenes, including in a blender. Mattel filed complaints in 1999 in the U.S. District Courts for both the Northern and Central Districts of California alleging copyright, trademark and trade dress infringement and dilution.
Thomas Forsythe, who does business as Walking Mountain Productions, describes the message behind his photographic series as an attempt to "critique[ ] the objectification of women associated with [Barbie], and [ ] [to] lambaste[ ] the conventional beauty myth and the societal acceptance of women as objects because this is what Barbie embodies."
Forsythe's market success was limited. He displayed his works at two art festivals and promoted his works through a postcard, a business card, and a Website. The "Food Chain Barbie" series earned Forsythe a total gross income of $3,659. Forsythe had a Website on which he depicted low resolution pictures of his photographs but the Website was not configured for online purchasing.
The Court concluded that Forsythe's work met the fair use exception to copyright infringement and similarly balanced the tests for trademark and trade dress infringement and dilution in favour of a public interest in free and artistic expression over the potential for consumer confusion about Mattel's sponsorship or affiliation with the work.
For a copy of the decision, visit:
http://makeashorterlink.com/?K5B2227F6
For further information, visit:
http://www.nytimes.com/2003/12/31/arts/31ARTS.html