Ninth Circuit says: Go Ahead, Take Naked Pictures of Barbie

Fair Use Strikes Again!

The Ninth Circuit Court of Appeals ruled today that taking naked pictures of Barbie dolls in danger of being attacked by vintage household appliances was fair use under copyright and trademark laws.

I kid you not.

The opinion is great overall, but the facts suprass anything the law might say. Check out the description of the photos on Page 4. In particular, Fondue a la Barbie (Barbie heads in a fondue pot) and Barbie Enchiladas (four Barbie dolls wrapped in tortillas tortillas and covered with salsa in a cassarole dish in a lit oven).

ADDENDUM:I just re-read a passage of the opinion that I couldn't be happier with. On page 10, the Court runs off a great graph about how repurposing content supports the policy behind the Copyright Act:

Consistent with its policy goals, however, the Copyright Act recognizes certain statutory exceptions to protections on copyrights. At its core, the Act seeks to promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575-76 (1994). Recognizing that science and art generally rely on works that came before them and rarely spring forth in a vacuum, the Act limits the rights of a copyright owner regarding works that build upon, reinterpret, and reconceive existing works. See id. at 575-77 (“[F]ew, if any, things . . . are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow . . . .” (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (No. 4,436)).

It's also interesting to note that the Court rejected Mattel's attempt to discount the photos as "parodies" with survey evidence showing that most people didn't understand that the photos were parodies. Again, the Court uses great language:

Use of surveys in assessing parody would allow majorities to determine the parodic nature of a work and possibly silence artistic creativity. Allowing majorities to determine whether a work is a parody would be greatly at odds with the purpose of the fair use exception and the Copyright Act.

The Court then basically said that they decide whether or not something is a parody and not the public. Useful here, but as has been noted about the 2 Live Crew case, its potentially dangerous to leave parody in the eye of the judge rather than the eye of the beholder. Here's how they go about it:

Mattel, through impressive marketing, has established Barbie as “the ideal American woman” and a “symbol of American girlhood” for many. Mattel, Inc. v. MCA Records, Inc. (“MCA”), 296 F.3d 894, 898 (9th Cir. 2002), cert. denied, 123 S. Ct. 993 (2003). As abundantly evidenced in the record, Mattel’s advertisements show these plastic dolls dressed in various outfits, leading glamorous lifestyles and engaged in exciting activities. To sell its product, Mattel uses associations of beauty, wealth, and glamour.

Forsythe turns this image on its head, so to speak, by displaying carefully positioned, nude, and sometimes frazzled looking Barbies in often ridiculous and apparently dangerous situations. His lighting, background, props, and camera angles all serve to create a context for Mattel’s copyrighted work that
transform Barbie’s meaning. Forsythe presents the viewer with a different set of associations and a different context for this plastic figure. In some of Forsythe’s photos, Barbie is about to be destroyed or harmed by domestic life in the form of kitchen appliances, yet continues displaying her well known smile, disturbingly oblivious to her predicament. As portrayed in some of Forsythe’s photographs, the appliances are substantial and overwhelming, while Barbie looks defenseless. In other photographs, Forsythe conveys a sexualized perspective of Barbie by showing the nude doll in sexually suggestive contexts. It is not difficult to see the commentary that Forsythe intended or the harm that he perceived in Barbie’s influence on gender roles and the position of women in society.

However one may feel about his message — whether he is wrong or right, whether his methods are powerful or banal — his photographs parody Barbie and everything Mattel’s doll has come to signify. Undoubtedly, one could make similar statements through other means about society, gender roles,
sexuality, and perhaps even social class. But Barbie, and all the associations she has acquired through Mattel’s impressive marketing success, conveys these messages in a particular way that is ripe for social comment.

Sounds like someone's clerk took at least one art history class in college, eh?