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ashington Post
Sunday, January 4, 2004; Page A02
Skewering Barbie's Image in The Name of Art Is Fine by Court
For a doll who never has a hair out of place, being stripped and stuffed
into martini glasses and posed naked in vintage milkshake machines and
blenders isn't what toy manufacturer Mattel had in mind for a photo shoot
with its blond bombshell, Barbie.
But the U.S. Court of Appeals for the 9th Circuit in San Francisco ruled
last week that there isn't anything the toy giant can do to stop a Utah
artist from photographing the iconic doll wrapped in tortillas in an oven,
fried in a wok and skewered on fondue forks. The court ruled the free-speech
rights of photographer Tom Forsythe prevailed over Mattel's trademarks and
intellectual-property claims.
Forsythe, who has showed the collection of photographs titled "Food Chain
Barbie" in galleries across the country, has said he uses the dolls to
criticize American culture.
"Barbie is the first rung on a contorted ladder of cultural influences that
consistently reinforce the oh-so-damaging beauty myth," Forsythe explained
on his Web site.
-- Kimberly Edds
http://www.washingtonpost.com/wp-dyn/articles/A52716-2004Jan3.html
First part of judgment reproduced below (entire opinion can be read free at
http://www.lexisone.com or downloaded from the Court server in PDF format:
http://tinyurl.com/ysgkf
2003 U.S. App. LEXIS 26294,*
MATTEL INC., a Delaware Corporation, Plaintiff-Appellant, v. WALKING
MOUNTAIN PRODUCTIONS, a California Business Entity; TOM FORSYTHE, an
individual d/b/a Walking Mountain Productions, Defendants-Appellees. MATTEL
INC., a Delaware Corporation, Plaintiff-Appellee, v. WALKING MOUNTAIN
PRODUCTIONS, a California Business Entity; TOM FORSYTHE, an individual d/b/a
Walking Mountain Productions, Defendants-Appellants.
No. 01-56695, No. 01-57193.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2003 U.S. App. LEXIS 26294
March 6, 2003, Argued and Submitted, Pasadena, California
December 29, 2003, Filed
PRIOR HISTORY: [*1] Appeal from the United States District Court for the
Central District of California, Ronald S.W. Lew, District Judge, Presiding
and United States District Court for the Northern District of California,
William H. Alsup, District Judge, Presiding. C.D. Cal. No. CV-99-08543-RSWL,
N.D. Cal. No. CV-01-0091 Misc. WHA. Mattel, Inc. v. Walking Mt. Prods., 4
Fed. Appx. 400, 2001 U.S. App. LEXIS 2610 (2001)
DISPOSITION: Affirmed.
COUNSEL: Adrian M. Pruetz (argued), Michael T. Zeller, Edith Ramirez and
Enoch Liang, Quinn Emanuel Urquhart Oliver & Hedges, LLP, Los Angeles,
California, for the plaintiff-appellant-cross-appellee.
Annette L. Hurst (argued), Douglas A. Winthrop and Simon J. Frankel, Howard,
Rice, Nemerovski, Canady, Falk & Rabkin, APC, San Francisco, California, and
Peter J. Eliasberg, ACLU, Los Angeles, California, for the
defendants-appellees-cross-appellants.
Annette L. Hurst, Douglas A. Winthrop and Simon J. Frankel, Howard, Rice,
Nemerovski, Canady, Falk & Rabkin, APC, San Francisco, California, for
non-party San Francisco Museum of Modern Art.
JUDGES: Before: Harry Pregerson and Sidney R. Thomas, Circuit Judges, and
Louis F. Oberdorfer, Senior District Judge. * Opinion by Judge Pregerson.
* The Honorable Louis F. Oberdorfer, Senior Judge, United States District
Court for the District of Columbia, sitting by designation. [*2]
OPINIONBY: Harry Pregerson
OPINION: PREGERSON, Circuit Judge:
In the action before us, Plaintiff Mattel Corporation asks us to prohibit
Defendant artist Thomas Forsythe from producing and selling photographs
containing Mattel's "Barbie" doll. Most of Forsythe's photos portray a nude
Barbie in danger of being attacked by vintage household appliances. Mattel
argues that his photos infringe on their copyrights, trademarks, and trade
dress. We have jurisdiction pursuant to 28 U.S.C. 1291 and affirm the
district court's grant of summary judgment to Forsythe.
BACKGROUND
Thomas Forsythe, aka "Walking Mountain Productions," is a self-taught
photographer who resides in Kanab, Utah. He produces photographs with social
and political overtones. In 1997, Forsythe developed a series of 78
photographs entitled "Food Chain Barbie," in which he depicted Barbie in
various absurd and often sexualized positions. n1 Forsythe uses the word
"Barbie" in some of the titles of his works. While his works vary, Forsythe
generally depicts one or more nude Barbie dolls juxtaposed with vintage
kitchen appliances. For example, "Malted Barbie" features a nude Barbie
placed on a vintage [*3] Hamilton Beach malt machine. "Fondue a la Barbie"
depicts Barbie heads in a fondue pot. "Barbie Enchiladas" depicts four
Barbie dolls wrapped in tortillas and covered with salsa in a casserole dish
in a lit oven.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Forsythe possessed slides of 386 additional photographs that he never
published, distributed, or sold because he considered them inadequate for
the series.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In his declaration in support of his motion for summary judgment, Forsythe
describes the message behind his photographic series as an attempt to
"critique[ ] the objectification of women associated with [Barbie], and [ ]
[to] lambast[ ] the conventional beauty myth and the societal acceptance of
women as objects because this is what Barbie embodies." He explains that he
chose to parody Barbie in his photographs because he believes that "Barbie
is the most enduring of those products that feed on the insecurities of our
beauty and perfection-obsessed consumer culture." Forsythe claims that,
throughout his series of photographs, he attempts [*4] to communicate,
through artistic expression, his serious message with an element of humor.
Forsythe's market success was limited. He displayed his works at two art
festivals -- the Park City Art Festival in Park City, Utah, and the Plaza
Art Fair in Kansas City, Missouri. n2 He promoted his works through a
postcard, a business card, and a website. Forsythe printed 2000 promotional
postcards depicting his work, "Barbie Enchiladas," only 500 of which were
ever circulated. Of those that were circulated, some were distributed
throughout his hometown of Kanab and some to a feminist scholar who used
slides of Forsythe's works in her academic presentations. He also sold 180
of his postcards to a friend who owned a book store in Kanab so she could
resell them in her bookstore and sold an additional 22 postcards to two
other friends. Prior to this lawsuit, Forsythe received only four or five
unsolicited calls inquiring about his work. The "Food Chain Barbie" series
earned Forsythe total gross income of $ 3,659. n3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
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