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Case of the plastic plaintiff: Barbie vs. free speech
Inside the First Amendment

By Ken Paulson

Barbie just lost a big case in court. No, she wasn’t suing Ken.

In fact, it was Mattel, the parent company for the Barbie doll, who sued MCA Records, for releasing “Barbie Girl,” a 1997 hit song by the Danish band Aqua.

Mattel contended that MCA violated Mattel’s trademark on Barbie by using the doll’s name in the title and content of the song. They alleged that Barbie fans would be confused and believe that the song was an authorized product.

MCA argued that the song would not confuse consumers and that it was satire protected by the First Amendment.

It’s not unusual for a trademark owner to aggressively protect his property. It is a bit unusual, however, to have a 12-inch plastic doll at the heart of a federal appellate decision. What’s next? G.I. Joe charged with flag burning?

Having a plastic plaintiff appears to have tickled 9th U.S. Circuit Court of Appeals Judge Alex Kozinski, who wrote the majority opinion in a refreshing style taught by no law school in America.

“Barbie was born in Germany in the 1950s as an adult collector’s item,” Kozinski wrote. “She has survived attacks both psychic (from feminists critical of her fictitious figure) and physical (more than 500 professional make-overs).”

Kozinski concluded that “Barbie Girl” was in fact a parody, protected by the First Amendment. Consumers were unlikely to believe the song was a Mattel product with lyrics like “I’m a blond bimbo girl in a fantasy world/Dress me up, make it tight, I’m your dolly.”

Nor was the “Barbie Girl” title a violation of Mattel’s trademark, Kozinski wrote.

“If we see a painting titled ‘Campbell’s Chicken Noodle Soup,’ we’re unlikely to believe that Campbell’s has branched into the art business,” the judge wrote.

Although the opinion was lighthearted, the court’s decision in favor of MCA was an important First Amendment victory.

We’re increasingly seeing trademark and copyright law used to silence free speech, particularly when it involves commercial products. Most common are threatening letters from movie and television studios telling young people they need to shut down Web sites about favorite shows or films. Hollywood is very protective of its rights.

Last year, the same federal appellate court that ruled on Barbie weighed the publicity rights of actor Dustin Hoffman against the free-press rights of Los Angeles Magazine. For a special Hollywood issue, the magazine published “Grand Illusions,” taking scenes from classic movies and digitally superimposing new designer clothing. This high-tech fashion spread showed Hoffman in a scene from the 1982 film “Tootsie,” captioned “Dustin Hoffman isn’t a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels.”

Hoffman sued, charging that the photo spread violated his right to publicity. The court ruled in favor of Los Angeles Magazine, saying it had a First Amendment right to lampoon films and celebrities.

While the owners of creative content can and should protect their legal rights, we also need to protect parody and commentary on the pop culture that shapes our society. Marketers can’t be allowed to pre-empt the marketplace of ideas.

It’s probably not surprising that the battle over Barbie led to yet another lawsuit. A Mattel representative had criticized MCA’s disclaimer that the song was a social commentary and “not created or approved by the makers of the doll.”

“It’s akin to a bank robber handing a note of apology to a teller during a heist,” the Mattel spokesman said.

That comment — and other somewhat intemperate words — led MCA to file its own suit against Mattel for defamation.

Kozinski once again ruled for free speech and concluded that in this context the public wouldn’t take seriously words like “heist” and “theft.”

The irony is that Mattel tried to infringe on MCA’s First Amendment rights to distribute a song, and MCA tried to infringe on Mattel’s First Amendment rights to free speech.

Demonstrating both a sense of justice and a sense of humor, the judge distilled his opinion in just six words: “The parties are advised to chill.”

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