Magazine article St. Louis Journalism Review

Bizarre Barbie Photographs Lead Court to Protect Parody

Magazine article St. Louis Journalism Review

Bizarre Barbie Photographs Lead Court to Protect Parody

Article excerpt

Humor is not taught in law school. Judges don't get elected, nominated or confirmed by poking fun at revered institutions. Humor, avant garde art and parody don't fit in any convenient legal pigeonholes.

Consequently, artistic parody has had a rough ride in our legal system. The Eighth Circuit U.S. Court of Appeals, based in St. Louis, in past years, found trademark law violations in the "Mutant of Omaha" parody about nuclear holocaust insurance, and a "Michelob Oily" parody advertisement in Snicker magazine. Other courts have ruled against parody baseball cards by a company called Cardtoons, sculptures by the artist Jeff Koons that make fun of popular culture, and even a silly advertisement that showed a robot turning "Wheel of Fortune" letters.

So, Mattel Corporation probably felt confident when it brought suit in 2001 against Tom Forsythe, a photographer. Forsythe's works depicted unclothed Barbies in unusual situations--on a vintage malt machine, in a working fondue pot, and rolled in tortillas and covered with salsa in a casserole dish in an oven. Other placements of Barbie by Forsythe were delicately described by the court as involving "various absurd and often sexualized positions." Mattel sued under several intellectual property theories, claiming that Forsythe's use of its famous doll infringed its copyright and trademarks, and diluted the value of its trademark.

Barbie versus Photographer took an unusual turn, however--Barbie lost. Or, at least Mattel's "Don't let artists play with Barbie" theory lost. And, the recent decision in Forsythe's favor by the U.S. Court of Appeals for the Ninth Circuit holds the promise of leading the way for better legal understanding and protection for the value of parody and artistic criticism.

In its decision in late December, the appeals court both followed and extended a key U.S. Supreme Court's precedent, a 1994 decision involving 2 Live Crew's crude hip-hop parody of Roy Orbison's song "Pretty Woman." The Ninth Circuit elicited from the "Pretty Woman" case a series of principles favoring the right to parody in all artistic media.

The court first noted Forsythe's critical purpose. While Mattel associated Barbie dolls with beauty, wealth, and glamour, Forsythe turned that image on its head, the court noted, "by displaying carefully positioned, nude, and sometimes frazzled looking Barbies in often ridiculous and apparently dangerous situations." In some photographs, for example, "Barbie is about to be destroyed or harmed by domestic life in the form of kitchen appliances, yet continues displaying her well known smile, disturbingly oblivious to her predicament," according to the court.

The court's opinion thus echoed Forsythe's own explanation of his photography's purpose. On a website that displays his Barbie photos, Forsythe's "artist's statement" asserts that Barbie "is the most potent single representation of the ubiquitous beauty myth"--a product that "retains its glazed, blissful smile regardless of its impending fate. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.