June 28, 2004

Artists, their Barbies, and the law.

Much as I feel I should carefully read the Supreme Court cases that came out today and provide some enlightenment on the subject, I am going to address a different legal topic: "Judge Says Artist Can Make Fun of Barbie." You wouldn't think anyone would need a judge's opinion to be free to make fun of Barbie (the doll), but in this case Mattel sued the artist, Tom Forsythe, who was selling photographs of the doll. Click on the link to see one of the photos--5 naked Barbies lying in a baking pan about to be cooked into, apparently, enchildas.
In the summer of 1999, Mattel sued Mr. Forsythe for copyright and trademark infringement.

After a lengthy legal tussle, which included a series of appeals, a federal judge late last week instructed Mattel to pay Mr. Forsythe legal fees of more than $1.8 million.

"I couldn't have asked for a better result," said Mr. Forsythe, 46, of Kanab, Utah. "This should set a new standard for the ability to critique brands that are pervasive in our culture."

...Mattel can appeal the award, but the company would have to appeal to the Ninth Circuit Court of Appeals in San Francisco, which had earlier instructed the district court to consider awarding legal fees...

Why should Mattel have to pay the defendant's attorneys' fees? According to the judge, the case was "objectively unreasonable and frivolous," as Mattel's "sophisticated" legal counsel had to have been able to figure out, so the choice to bring a lawsuit has to be seen as an effort to pressure the artist to give up what he had a right do by dragging him into frighteningly costly litigation. Exactly! Great decision! And thanks to the artist for not freaking out and giving up when Mattel sued him.

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