LOS ANGELES - The Ninth Circuit Court of Appeals dealt a blow on Friday, February 16, to Mattel's efforts to block artist Tom Forsythe from using Barbie in his artwork. Forsythe used the image of Barbie in a variety of poses to critique the materialistic and gender-oppressive values he believes the doll embodies. Mattel, in keeping with its history of employing heavy-handed litigation to squelch free speech involving its iconic doll, sued Forsythe, alleging a variety of claims, including trademark and copyright infringement. The company sought a preliminary injunction against Forsythe, represented by the ACLU of Southern California and the private firm of Howard, Rice, Nemerovski, Canady, Falk & Rabkin. A Federal District Court denied the motion, and the corporation appealed to the Court of Appeals to overturn that decision.
The Court said no.
"We are pleased by the Court of Appeals' decision," said Peter Drobac, one of the Howard, Rice attorneys defending Mr. Forsythe. "We think Judge Lew's decision plainly was correct. The Ninth Circuit apparently shares that view. Unfortunately, Mattel continues to seek to censor Mr. Forsythe's artistic expression and his rights under the intellectual property laws to comment on and critique Mattel's products. Mr. Forsythe therefore will continue to defend his rights, and we will seek summary judgment on Mattel's claims."
Peter Eliasberg, staff attorney at the ACLU of Southern California, concurred.
"The Court of Appeals," said Eliasberg, "after reviewing the facts and the legal basis of the district court's ruling, concluded that there was no realistic chance of Mattel prevailing. It would be appropriate at this point for Mattel to drop the case, but we're not counting on that."