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9th Circuit slaps down attempt to stifle Barbie lampooner

By The Associated Press
12.30.03

SAN FRANCISCO — A Utah artist who photographed Barbie dolls posed naked in a blender, wrapped in a tortilla and sizzling on a wok did not violate Mattel Inc.'s copyright to the cultural icon, a federal appeals court has ruled.

A three-judge panel of the 9th U.S. Circuit Court of Appeals yesterday dismissed a lawsuit the El Segundo-based toymaker had brought against Tom Forsythe, a self-described "artsurdist" from Kanab, Utah, who used the dolls in a series of photos titled "Food Chain Barbie."

Mattel said the pictures, which often showed Barbie posed in sexually provocative positions, could confuse consumers into believing it was behind the works. One photo, "Malted Barbie," featured a nude Barbie on a vintage Hamilton Beach malt machine.

But the 9th Circuit said the lawsuit "may have been groundless and unreasonable." In addition, the court said Forsythe had a First Amendment right to lampoon Barbie.

"Mattel cannot use trademark laws to censor all parodies or satires which use its name," 9th Circuit Judge Harry Pregerson wrote for the three-judge panel in Mattel v. Walking Mountain Productions.

Mattel did not return calls seeking comment. A Los Angeles federal judge also had dismissed the suit, which was filed in 1999.

Forsythe has said he uses Barbies to criticize "the materialistic and gender-oppressive values" he believes the dolls embody. In an interview yesterday, he said that with the help of the attorneys who worked for free on his case, "I wasn't scared off. It was a ridiculous lawsuit."

One of Forsythe's photos, "Barbie Enchiladas," shows four Barbie dolls inside a lit oven, wrapped in tortillas and covered with salsa in a casserole dish. The appeals court said he earned $3,659 selling postcards of his "Food Chain Barbie" series.

Forsythe isn't the only one Mattel has sued over Barbie. In January, the U.S. Supreme Court refused to review a 9th Circuit decision in a dispute between the toymaker and the Danish pop band Aqua. The 9th Circuit had declined to reinstate Mattel's lawsuit alleging that the 1997 pop song "Barbie Girl" infringed on the toymaker's patent.


Update
Artist who parodied Barbie awarded nearly $2 million
Federal judge orders Mattel to pay Utah man's legal fees after 9th Circuit rules he has First Amendment right to lampoon doll. 06.29.04

Previous
Artist can toy around with Barbie, rules federal judge
Court says Utah man's photographs are parody, don't hurt Mattel's marketing of doll. 08.14.01

Related

High court refuses to hear fight over Barbie song parody

Justices turn away appeal by Mattel to reopen trademark fight over Danish group's 1997 dance hit 'Barbie Girl.' 01.27.03

Wal-Mart critic wins lawsuit over Web sites
Federal judge says its unlikely shoppers would confuse 'Walocaust,' 'Wal-Qaeda' parodies with the real store. 03.27.08

Parody & satire

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