LOS ANGELES - Federal Judge Ronald Lew firmly signaled to Mattel today that its efforts to quash an artist's free speech rights through litigation will most likely not succeed. In denying Mattel's request for preliminary injunction against artist Tom Forsythe on copyright and trademark grounds for his artistic use of Barbie dolls, Judge Lew stated that Mattel had not demonstrated it was likely to succeed on the merits.
"Today's statement from the court should give Mattel and its attorneys pause," said Peter Eliasberg, Staff Attorney at the ACLU of Southern California. "Their strategy of trying to bury Tom Forsythe's First Amendment rights in an avalanche of legal documents will not work."
"There are a few things money and power can't buy in America," said Annette Hurst, of San Francisco's Howard, Rice, Nemerovski, Canady, Falk & Rabkin, pro bono co-counsel in the case, "and one of them is the silence of someone determined to express a viewpoint. That's what the First Amendment is all about, and the court recognized that intellectual property laws must sometimes accommodate free speech interests."
Artist Tom Forsythe, of Kanab, Utah, has used Barbie dolls to parody Barbie's embodiment of America's culture of consumption and conformism. His Barbie series of photos appeared in galleries across the country and won critical acclaim. In August of last year, Mattel sued the artist for copyright and trademark infringement. The ACLU of Southern California and the firm Howard, Rice stepped in to stop Mattel's use of litigation as a method of bullying artists into abandoning their First Amendment rights. Working with Ms. Hurst of Howard, Rice are attorneys Douglas Winthrop, Simon Frankel, and Peter Drobac.
"My Barbie series of photos critiques the Barbie doll and the shallow, consumerist values fostered and perpetuated by it," said Forsythe. "Little did I know that Mattel, chief purveyor of images that degrade and silence young women, would turn the full force of its multi-billion dollar power on me. This lawsuit has been a surreal experience: Mattel has basically taken over my life in an effort to shut down my work. I don't plan to roll over and play dead as so many other artists have been forced to do by Mattel's aggressive tactics."
Mattel has a long rap sheet as an aggressive litigator to stop the fair use of Barbie images:
--Artist Paul Hansen, of San Francisco, sold 150 modified Barbies as art works, on which he made a profit of around $2,000. Mattel sued for damages of $1.2 billion. Hansen ultimately settled after Mattel, despite Hansen's vow never to sell his dolls in stores again, forced a protracted legal wrangle. The judge in the case granted partial summary judgment against Mattel "for not having a sense of humor." "It's been a year from hell,"the artist said. ("You can Call Her Barbie-Sue," The News and Observer, January 12, 1998)
--In late 1997, Mattel succeeded in bullying the art web-site "The Distorted Barbie" into altering its images and ultimately moving to a new address with a less nervous provider. The purpose of the site, according to its host, web artist Mark Napier, was "to explore the phenomenon of Barbie. Not Barbie as a toy or collectible, but Barbie as a symbol that a culture has created, absorbed, shaped, and been shaped by." ("Does the Distorted Barbie Violate Mattel's Copyright?" http://18.104.22.168/bbhold/censored/censored.htm)
--Mattel has been exceptionally aggressive and punitive toward defendants in its copyright and trademark cases. In one case involving a fan and trading magazine, a member of Mattel's legal team was quoted in the Spokane Spokesman-Review saying, of the defendants, "We want the Millers' house." ("Mattel's Latest: Cease and Desist Barbie," WIRED News, Oct. 28, 1997, http://www.wired.com/news/culture/0,1284,8037,00.html)
--While Mattel's vast resources have helped it overcome most defendants without much of a fight, MCA, which Mattel sued in September 1997 over the band Aqua's hit song, "Barbie Girl," continues to succeed in resisting Mattel's efforts to shut down artistic references to Barbie. A federal court judge ruled in favor of MCA in 1998. That decision is on appeal. ("Spinning Vinyl at the 9th Circuit," The Recorder, Dec. 6, 1999; "Recent Cases," Entertainment Law Reporter, June 1999).
--In December of 1999, Mattel sued Seal Press, a small book publisher whose book, "Adios, Barbie," a feminist examination of body image, aroused Mattel's ire. In a settlement reached in January, Seal agreed to remove Barbie's name from the book's title and to remove images of the doll's clothing and accouterments from its cover.
Faith Conlon, Seal Press publisher, believed that the book was protected speech: "We thought the First Amendment provided us with every right to evoke the outrageousness of tall, thin, and white being the only widely accepted body type."
--But Mattel's resources overwhelmed the small press. "We are a small publisher," said Conlon, "We're not insured for the costs associated with this type of lawsuit." ("Seal of Disapproval," Seattle Weekly, March 3, 2000)
"This case is about insisting that a corporate giant can't stop an artist from using one of their products to create art and to comment on our society," said Douglas Winthrop, of San Francisco's Howard, Rice. "If we were to allow that to happen, the content of our culture would be greatly reduced and emptied. We cannot allow Mattel to do that."