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   Barbie in parody, rights protected?
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   Author  Topic: Barbie in parody, rights protected?  (Read 1588 times)
Mo
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Barbie in parody, rights protected?
« on: May 17th, 2006, 10:58am »
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hi, I'm considering using a barbie doll in original photographs. I would re-paint her a solid color and use her on greeting cards.
 
I found this on an intellectual property site and wondered if you believe that this use would allow me to use her as a character without infringement of her IP protection.
 
 
Question: What is copyright infringement? Are there any defenses?
Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.
 
The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:
 
 
the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of copying, and  
the market effect.
(17 U.S.C. 107)
 
The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."
 
Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.
 
thanks,
Mo
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Isaac
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Re: Barbie in parody, rights protected?
« Reply #1 on: May 17th, 2006, 11:09am »
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What would be the parody implication of coloring Barbie a solid color?
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Isaac
Mo
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Re: Barbie in parody, rights protected?
« Reply #2 on: May 17th, 2006, 11:26am »
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gold. trophy wife.
 
mo
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Wolfcastle
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Re: Barbie in parody, rights protected?
« Reply #3 on: May 17th, 2006, 11:47am »
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"Life in plastic, it's fantastic You can brush my hair, undress me everywhere Imagination, life is your creation Come on, Barbie, let's go party"
 
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/2507FB5DDCB94D7088256C00 0051F3B8/$file/9856453.pdf?openelement
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JSonnabend
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Re: Barbie in parody, rights protected?
« Reply #4 on: May 17th, 2006, 12:06pm »
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I don't think your proposed use, as I understand it, qualifies as "parody", regardless of whether we're talking copyright or trademark.  In either case, it doesn't seem to me that you're parodying Barbie, you're simply using the Barbie doll in a different, artistic work.
 
On the trademark side, I'm not sure Mattel (?) has any protectible trademark rights on the Barbie doll product configuration.  If they do, I'm still not sure your use would create a likelihood of confusion, some sort of implied endorsement or dilution.  In other words, you may be free and clear of trademark infringement, assuming such rights.
 
On the copyright side, Mattel almost certainly has protectible copyrights in the doll, and your use of the doll, altered as you've described, very well may infringe those rights.  Whether or not it's fair use (under some other theory than parody), is difficult to say.  A review of the case law may uncover a factual similar case.
 
- Jeff
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SonnabendLaw
Intellectual Property and Technology Law
Brooklyn, USA
718-832-8810
JSonnabend@SonnabendLaw.com
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