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Rosa Parks and Barbie battle for their names

By Ann Woolner
BLOOMBERG, ATLANTA
Saturday, Aug 18, 2001, Page 19

`Rosa Parks and Barbie have wound up on the wrong end of the First Amendment, which gives greater weight to art, music and political speech than to trademark, commercial or publicity rights.'

Naked Barbie dolls wrapped in tortillas, splashed with salsa and lying in a roasting pan! Nude Barbie lounging in a martini glass! A pair of Barbies frolicking naked in a blender! Stop! Call the trademark cops! The decency police!

The Utah artist who photographed Barbie posed nude with food preparation devices named the collection Food Chain Barbie and called it parody. Barbie's maker, Mattel Inc, called it trademark infringement and "violently misogynistic," and sued.

A federal judge on Monday called the photos constitutionally protected speech and kicked Mattel's case out of court.

And while this drama was playing out in Los Angeles, a real-life Barbie is fighting over the rights to her fame elsewhere.

Helo Pinheiro was tall and tan and young and lovely in 1962 when two middle-aged songwriters hanging out at a bar in Rio de Janeiro watched her walk to the sea each day and said, "Ah!"

There's no argument that Pinheiro, then a teenager, is The Girl From Ipanema, a Rio neighborhood. Songwriters Antonio Carlos Jobim and Vinicius de Moraes acknowledged as much long before their deaths.

For almost four decades, she's been capitalizing on her famed beauty, acting in soap operas, hosting a talk show from her hot tub, running a modeling agency. In 1998, she secured a trademark, Garota de Ipanema, the song title in Portuguese, and this year opened a boutique of the same name.

And last year, she accepted an award for the song at an event in France.

The songwriters' heirs, by now fed up, have demanded she stop.

Who has rights to The Girl From Ipanema, the woman who is the girl, or the heirs to the writers who gave her that name? This, naturally, leads to Rosa Parks. A real woman, not a toy, who became an icon for her courage, not her looks, and who's best known for not walking.

In 1955, Parks, a black woman in the then-segregated South, refused to go to the back of a bus in Montgomery, Alabama. Her refusal and arrest sparked a bus boycott, ignited the civil rights movement and led to a court decision striking down segregation in public transit.

Parks is back in court, this time saying her fame has been abused for commercial purposes. To wit, a song.

It seems the rap group OutKast has taken her name for the title of a song she rather dislikes.

She's invoked the so-called right of publicity that lets celebrities stop others from using their names commercially. Rosa Parks, the song, while more benign than many rap offerings, uses vulgar terms for women, breasts and blacks.

The song's not even about segregation or courage, or about Rosa Parks. Its message: OutKast's album is so good that all competing rap groups should "move to the back of the bus."

For this they invoke the name of a civil rights legend? Yes, if they want to, says a federal judge in Detroit.

Parks, who has appealed, will have a hard time winning. In a decision dismissing Parks's case, US District Judge Barbara Hackett called her "an international symbol of freedom, humanity, dignity and strength."

The homage only underscores the sanctity of the principles the judge upheld despite the sympathetic plaintiff. The US Constitution protects "expressive work" such as art and music from public figures who would suppress it.

Yes, the song's "profane and vulgar" and not "artistically serious," the judge wrote. But it's not up to judges to define good art.

Rosa Parks and Barbie have wound up on the wrong end of the First Amendment, which gives greater weight to art, music and political speech than to trademark, commercial or publicity rights.

This is why US District Judge Ronald Lew ruled Monday that artist Tom Forsythe's Barbie photos were constitutionally protected parody.

Forsythe's message is the emptiness of the American beauty myth and consumerism. "We consume, digest and use as fuel for our psychic lives icons that can only frustrate us," he says on his Web site.

You can think his Barbie images hilarious or sick, meaningful or sophomoric. But the First Amendment says you can't stop them.

Mattel cannot produce a doll that becomes both an icon and a lightning rod and expect to shield it from an artist who wants to put it in a roasting pan.

Pinheiro's an icon, too. "She represents everything beautiful about the lifestyle in Rio," Carlos Monjardim, president of the Ipanema merchants' group, told the Chicago Tribune during a tribute to Pinheiro last weekend.

``She is The Girl from Ipanema,'' her lawyer, Paulo Mariano, said from Sao Paolo on Wednesday. "The music exists because the girl exists." True. But Pinheiro didn't create the song. She just walked to the beach, oblivious to a couple of middle-aged men ogling her from a bar. She became the girl because the oglers used artistic talent to write lyrics, melody and rhythm that made an otherwise anonymous girl known to the world.

The song was theirs, and now is their heirs. For Pinheiro, Parks and Barbie, their problems are different but the governing principle is the same. When we become the subject of art -- or something that claims to be art -- we lose some degree of ownership over our own identities.

The law has something for its victims, too, if they turn it around. Pinheiro should write a song about the songwriters' heirs.

She could call it, The Scrooges from Ipanema. Parks could photograph the members of OutKast dressed like Klansmen and sell the pictures as art.

And Barbie? Ah, Barbie.

Let's just throw her in the blender.
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