Tuesday, June 29, 2004

Mattel gets nailed

Mattel has been defending Barbie's integrity in lawsuit after frivolous lawsuit recently. Awhile back it was over Aqua's "Barbie World" song, more recently it is a Utah man who incorporated nude Barbie dolls in his artwork.

The photos often depicted Barbie dolls placed in sexually provocative positions. One called "Barbie Enchiladas," shows four Barbie dolls inside a lit oven, wrapped in tortillas and covered with salsa in a casserole dish...Forsythe has said he uses Barbies to criticize "the materialistic and gender-oppressive values" he believes the dolls embody.

Mattel lost its case when a three-judge panel of the 9th U.S. Circuit Court of Appeals rejected Mattel's appeal and said the Utah man had a First Amendment right to parody Barbie because it is a cultural icon (much like the reasoning of the court in the Aqua case). "The panel also said Mattel's lawsuit may have been groundless and unreasonable."

The Utah man, who certainly could not afford to litigate against a monster company like Mattel was later awarded legal fees and court costs of $1.8 Million on remand. He was lucky enough to find pro bono counsel from the American Civil Liberties Union of Southern California and a team of lawyers from a San Francisco law firm, it is the attorneys who get the fees of course.

"Plaintiff (Mattel) had access to sophisticated counsel who could have determined that such a suit was objectively unreasonable and frivolous," Judge Lew wrote in his order. "Instead it appears plaintiff forced defendant into costly litigation to discourage him from using Barbie's image in his artwork. This is just the sort of situation in which this court should award attorneys fees to deter this type of litigation which contravenes the intent of the Copyright Act."

Hopefully this will make companies think twice about going after some of the ridiculous cases they pursue in order to "protect their intellectual property," which really translates to "oppress and chill speech" in these cases.

I am all for the hardcore protection of IP, but like the court said here - Mattel knew this was baseless but tried to bankrupt this guy anyway. That isn't what the IP laws were created for. The US Constitution says copyright is supposed to "promote the arts and sciences," not supress them.

Note: The pic above is not part of the pictures that were at issue in the recent suit.

Articles with more info: NYT, Yahoo/AP

Update: Howard Bashman at How Appealing has more. You can see the art at issue in the case at Illegal Art. Here is the recent opinion granting the fees to the defendant, here is the older 9th Circ decision in which they said the case was frivolous.


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