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Other >> Copyright Forum >> Barbie in parody, rights protected?
(Message started by: Mo on May 17th, 2006, 10:58am)

Title: Barbie in parody, rights protected?
Post by Mo on May 17th, 2006, 10:58am
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

Title: Re: Barbie in parody, rights protected?
Post by Isaac on May 17th, 2006, 11:09am
What would be the parody implication of coloring Barbie a solid color?

Title: Re: Barbie in parody, rights protected?
Post by Mo on May 17th, 2006, 11:26am
gold. trophy wife.

mo

Title: Re: Barbie in parody, rights protected?
Post by Wolfcastle on May 17th, 2006, 11:47am
"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/2507FB5DDCB94D7088256C000051F3B8/$file/9856453.pdf?openelement

Title: Re: Barbie in parody, rights protected?
Post by JSonnabend on May 17th, 2006, 12:06pm
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

Title: Re: Barbie in parody, rights protected?
Post by JSonnabend on May 17th, 2006, 12:24pm

on 05/17/06 at 11:47:27, Wolfcastle wrote:
"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/2507FB5DDCB94D7088256C000051F3B8/$file/9856453.pdf?openelement

That's an interesting case ("If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.") but I think it's off-point quite a bit.  In the Mattel case you cited, the question concerned references in a song to Barbie, not the use of the image of the doll in an artistic and/or commercial work.

- Jeff

Title: Re: Barbie in parody, rights protected?
Post by Mo on May 17th, 2006, 12:33pm
I did find this article. I have no idea how accurate it is, but it seems to apply...

I'll have to listen to Barbie Girl!

thanks for the interest!!
Mo

Title: Re: Barbie in parody, rights protected?
Post by Mo on May 17th, 2006, 12:34pm
oops, interrupted by a phone call - forgot to attach...

www.artistic-law.com/ci/256.html

Title: Re: Barbie in parody, rights protected?
Post by JSonnabend on May 17th, 2006, 6:51pm
Depending on how one characterizes the "trophy wife" use described by the OP, it may or may not be deemed parody.  Personally, it didn't sound like the OP was commenting on the Barbie "thing", but instead using the doll merely as a prop.  If my characterization is wrong, then parody may indeed lie.

In any event, the cited case, Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003) was decided on summary judgment for the photographer and upheld by the Court of Appeals.  At least if the OP is in the 9th Cir., he may be in good shape.

- Jeff

Title: Re: Barbie in parody, rights protected?
Post by Mo on May 18th, 2006, 11:35am
I wasn't actually thinking of a parody of Barbie originally, but trying to find a very young-looking "perfect" doll to make into a trophy (attached to a base,etc.). If a doll were painted and became a "prop" - (the only visual on the card), would that be considered original art, and release me from liability? I'll probably search for a doll with a similar "profile" (pun intended) to Barbie, but not as wildly popular. The female Disney characters - which I know to stay away from, resemble Barbie. Perhaps Mattel liscences them from Disney. Maybe I'll try to find one of those German **** dolls Barbie was fashioned after on ebay...

you realize this is mid-life crisis stuff and I'm also thinking about a red toy convertible.

thanks again,
Mo

Title: Re: Barbie in parody, rights protected?
Post by Mo on May 18th, 2006, 11:39am
by the way, what's an OP?
Mo

Title: Re: Barbie in parody, rights protected?
Post by JSonnabend on May 18th, 2006, 2:16pm
To answer the legal question, it's always hard to say what's fair use and what's not without finding a case on point, preferably in the relevant jurisidiction(s).  That Mattel case you cited (sort of cited ;) ) is helpful, though, I believe.

"OP" is a decidedly non-legal term: it means "Original Poster"

- Jeff

Title: Re: Barbie in parody, rights protected?
Post by JSonnabend on May 18th, 2006, 3:01pm
After my last post,  I came across a case decided last week in the Second Circuit that's informative on that circuit's approach to similar situations.  It's Bill Graham Archives v. Dorling Kindersley Ltd., --- F.3d ---  (2d Cir 2006) (http://caselaw.lp.findlaw.com/data2/circs/2nd/052514p.pdf)

- Jeff


Title: Re: Barbie in parody, rights protected?
Post by Mo on May 19th, 2006, 8:05am
Thanks Jeff,

I'll send you a card once they're done - just don't sue me  ;)

Mo



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