In First Amendment Victory, Appeals Court Nixes Mattel's Attempt to Block Artist's Use of Barbie Dolls

December 29, 2003 12:00 am

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LOS ANGELES-- The American Civil Liberties Union of Southern California today hailed an appeal court ruling in favor of artist Tom Forsythe in a case involving toy giant Mattel's attempt to suppress his use of the Barbie doll in his artwork.

"Today's ruling is a critical victory in the effort to maintain our right to speak out and critique a world increasingly dominated by corporate speech and brands," said Peter Eliasberg, Managing Attorney at the ACLU of Southern California. "The Ninth Circuit made it absolutely clear that the corporate world can't ban satire."

Attorneys in the case said the appeals court handed the toymaker a decisive defeat, all but eliminating its hopes of preventing artists from using the image of its iconic doll to critique the values they believe it represents.

"The Ninth Circuit made a very strong statement on behalf of artists' free speech and cultural criticism in the context of corporate intellectual property," said Annette Hurst, who argued the case before the Ninth Circuit Court of Appeals as an ACLU volunteer attorney with the firm Howard Rice Nemerovski Canady Falk & Rabkin. "In light of the court's strong direction that attorneys' fees should also be awarded, Mattel's directors and shareholders must now consider whether protracted and expensive losing legal battles against artists are really a good expenditure of corporate resources."

Artist Tom Forsythe, of Kanab, Utah, has used Barbie dolls to parody Barbie's embodiment of America's culture of consumption and conformism. His "Food Chain Barbie" series of photos has appeared in galleries and won critical acclaim in juried competitions.

In August of 1999, Mattel sued the artist for copyright and trademark infringement. The firm Howard, Rice and the ACLU of Southern California stepped in to stop Mattel's use of litigation as a method of bullying artists into abandoning their First Amendment rights. The case, Mattel v. Walking Mountain Productions, centered on the corporate control of public symbols and whether artists have the right to transform the intellectual property of others in order to criticize such symbols and comment on society.

"We are very pleased by the Court of Appeals' decision, which accepted virtually every argument we made in support of the District Court's ruling granting summary judgment to Mr. Forsythe," said Doug Winthrop, also of Howard Rice Nemerovski Canady Falk & Rabkin. "This is a complete victory for Tom Forsythe and for other artists and commentators who have been attacked by overly aggressive intellectual property owners."

"We also are very pleased by the Court of Appeals' reversal of the District Court's ruling denying Forsythe's request for $1.6 million in attorneys' fees," he added. "We think the writing is on the wall that Mattel is going to have to pay a substantial sum for having brought this baseless action."

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