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Artist can play with Barbie

A photo by artist and photographer Tom Forsythe that used Barbie dolls in enchiladas is one of the pictures that got him into hot water with toymaker Mattel. The company must pay Forsythe's legal fees after a judge in California tossed out its lawsuit against him, ruling that artists are allowed to play with dolls. PHOTO: NY TIMES NEWS SERVICE

Everybody should have a right to protect themselves from baseless and debasing sexual innuendo, particularly the kind that ridicules and humiliates. According to a US federal judge, however, that right does not extend to dolls -- even Barbie.

In a ruling that ended five years of legal wrangling, Judge Ronald Lew of the Central District Court of California ordered the toymaker Mattel to pay US$1.8m in legal costs after he threw out a copyright infringement suit filed by the company against a photographer who posed Barbie dolls naked in suggestive positions in or around household appliances.

"I thought the pictures needed something that really said `crass consumerism' and to me, that's Barbie," said Tom Forsythe, an artist and photographer. "The doll is issued in every possible role you can imagine and comes with every possible accessory for each and every role."

Forsythe exhibited his series of 78 pictures in Utah and Kansas City under the theme "Barbie's power as a beauty myth" and sold several thousand photos.

When Mattel found out, they sued him for copyright and trademark infringement in 1999.

It is not the first time Mattel has moved in to protect Barbie's honor. In the same year they started pursuing Forsythe, they also slapped Seal Press with a suit over a book called Adios Barbie. Seal agreed to remove the doll's name from the title and images of its clothing and accessories from the cover.

Last year Mattel unsuccessfully sought to stop the MCA record label from releasing a song called Barbie Girl, which they argued was defamatory because of its sexual innuendo.

In a written order, Lew effectively accused Mattel, of trying to bully Forsythe into backing down -- and ruled that photographers could play with dolls.

"[The] Plaintiff had access to sophisticated counsel who could have determined that such a suit was objectively unreasonable and frivolous," Lew wrote.

"Instead it appears [the] plaintiff forced [the] 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," Lew wrote.

Forsythe had struggled to find a legal team to defend him, until the American Civil Liberties Union, a civil rights group, stepped in.

"I couldn't have asked for a better result," Forsythe said. "This should set a new standard for the ability to critique brands that are pervasive in our culture."

Mattel still holds the right to appeal the award, but would have to appeal to the 9th Circuit Court that already instructed the district court to consider awarding attorney's fees.

Johnathan Zittrain, a professor at Harvard Law School who specializes in Internet and copyright law, said that the case may set a precedent.

"It's enough to give corporations with brands they want to protect and expand pause to consider whether to simply reflexively unleash the hounds the minute they see somebody doing something that relates to their brand of which they don't approve," he said. "It may send a signal that a `take no prisoner' strategy against the little guy has new risks for the plaintiff."
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