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[bravedog]

Hi. I'm working on a commercial dvd for NY filmmaker Joe Gibbons. His film Barbie's Audition is a featured mention on Illegal Art's video page. I'm quite certain Mattel would disapprove; I also understand that regardless of our view that this is a legitimate artistic use, copyright law allows them at a minimum to choose to bring action against the artist, and publisher [me].

I'm publishing out of my figurative basement. I'm willing to risk publishing risking being forced to cease distribution, or to risk needing tpo pay some legal fees. But not for a giant corporation to sue me for my total personal savings. I understand this forum's responses are not operative legal advice; nonetheless I'd be most interested to hear informed speculation on a]likelihood of any legal action for such an underground and low budget project for a recognized artist , and more importantly b] whether, as I suspect, publishing would create a significant risk I could be sued for my retirement savings; and if so if there's any legal means of protection [incorporation, etc] . Thanks

ps how about if I anonymized Barbie's features with a mosaic as is done for people who haven't signed release?

[Zonath]

Well, Mattel has been fairly militant in suing for infringement of its "Barbie" copyrights and trademarks in the past, including suing the band Aqua over the song "Barbie Girl" and suing an artist for creating "Food Chain Barbie" (a series of photographs which include Mattel's dolls in photos such as "Cutting Board Barbie" and "Barbie Enchiladas").  In the "Food Chain Barbie" case, the artist won the case and was awarded his legal costs, which (quite tellingly) amounted to around $1.9 million -- all on approximately $3600 earned from the photos prior to the lawsuit.  http://www.finnegan.com/MattelIncvWalkingMountainProds/

I don't know how much Mattel's appetite for such litigation has been stifled by such precedent, but the history certainly does show that an artist in a very similar circumstance was sued.

I doubt incorporation would work, since Mattel would simply argue that the corporate veil does not protect directors or officers of the corporation for willful illegal acts.  I'd say that the strongest means of protection for you would be a lawyer who would be willing to take his attorney fees off a motion for costs and fees if you end up being sued and winning.

[BobRoberts]

I'll just add a little to what Jonah said.  If your work is commenting/parody on Barbie, it might be protected by Fair Use (which can be a complex analysis).  Just because something is protected doesn't mean that you won't be hailed into court to prove/show fair use. 

Re: incorporating, and speaking without specific research, if you were to hire a competent attorney to do  a fair use analysis and receive an opinion as to fair use, perhaps that would fend-off piercing the corporate veil?  Just a thought...

Good luck!

[bravedog]

Thanks for your replies! Yes, have read about Blender Barbie; I do think Joe's use is similatrly Fair Use and that if I was prepared to commit $1.8 million over 5 years I might prevail... they've lost a couple others as well... but no, this still lacks appeal.

[I'm unable to reach a human at Mattel but they do have a form one can fill out, whic their site says someone will respond to in not less than 2 months. I consider approval unlikely]
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I remain interested in the option of mosaicizing Barbie's facial features out to anonymize her. If Joe approved, this would form a sort of social commentary of its own. Would this step provide me legal protection? thanks

[Zonath]

Since the entire doll is subject to a copyright (I believe), the blurring of facial features might enter into the "amount used" portion of a court's fair use analysis, but I don't know whether or not it would necessarily protect your use very far beyond that.  And it certainly won't stop Mattel from suing if they get the inkling to do so.

Just as an aside, I tend to think that you'd have a fairly good case under the past precedents concerning fair use (although I don't know exactly how the dolls will be used, so take that with a grain of salt).  It's unfortunate that the threat of having to defend a lawsuit can have a chilling effect upon otherwise-legitimate fair uses, but there you have it.