JUDICIAL FOLLIES - Trashing an icon

There is always a tension between those who own a copyright to an existing work of art or literature and those who want to create some new work based on the old one. On the one hand, copyright law protects the works of authors, artists, and other creative people (or, more often, their untalented descendants) from infringement. On the other, all creative works rely in part on what went before.

After all, what if every detective story author had to get permission from the heirs of Arthur Conan Doyle, creator of Sherlock Holmes? And didn't Doyle himself rely on Edgar Allen Poe?

Still, one well-recognized exception to copyright law is parody -- when one creative artist makes a new work that derides or even ridicules an existing work. And parody can be a huge exception, as one copyright owner discovered when trying to protect its creation from being viciously mocked.

And not just any copyrighted figure, but a truly cherished American icon.

I am referring, of course, to Barbie.

In fact, Mattel, Inc., the owner of that most famous of "fashion dolls" (really, is there anyone in second place?) had to defend her from not one, but two self-styled artists. Is nothing sacred any more?

The first of these two parodists was a British woman named Susanne Pitt, whom Mattel accused of infringing the copyright of "SuperStar Barbie." How? Well, Ms. Pitt, a resident of the United Kingdom, prepared and sold a "Dungeon Doll" in connection with a website that used a repainted and re-costumed Barbie doll with the "SuperStar Barbie" head. The website featured images of this reconstituted doll in a sexually explicit story and offered various sexual paraphernalia for sale.

In the second case, Thomas Forsythe, a photographer from Kanab, Utah, produced a series of 78 photographs entitled "Food Chain Barbie" in which he depicted Barbie in various absurd and often sexualized positions. He even used her name in some of the photographs, generally depicting one or more nude Barbie dolls juxtaposed with vintage kitchen appliances

For example, "Heatwave" Barbie showed the doll reclining in a toaster oven; "Malted Barbie" features a nude Barbie placed on a vintage Hamilton Beach malt machine; "Fondue a la Barbie" depicted Barbie heads in a fondue pot; "Barbie Enchiladas" depicted four Barbie dolls wrapped in tortillas and covered with salsa in a casserole dish; and "Blue Ice" Barbie posed nude in a martini glass.

Gee -- why would two people who otherwise had no connection both choose to portray Barbie in that way?

Mattel promptly sued both of them. Mattel claimed that their creations were nothing but an attempt to cash in on the fame of the world's most famous doll.

Or maybe not. The lawsuit against Ms. Pitt (apart from the website) was based on a single sale of the "dungeon" version of "SuperStar Barbie" to a Mattel representative. And Mr. Forsythe's success, or lack thereof, can be gleaned from the fact that at least half of his total sales were purchases by Mattel's own investigators -- which never amounted to more than a few thousand dollars.

Has Mattel never heard of "the Streisand effect"?

Ms. Pitt claimed that Barbie's origins could be traced to a German "adult" cartoon and doll called "Lilli" and that her website was offered free of charge "as entertainment in the same free spirit as the original creator." Although she was not represented by an attorney, the court refused to rule in Mattel's favor at an early phase of the lawsuit, concluding that there was uncertainty whether Pitt had infringed Mattel's copyright. Unfortunately, that's the only part of the case that led to a published opinion, but it did suggest where things might go.

And indeed, Forsythe managed to win the whole case, both in the trial court and on appeal. Mattel tried to introduce a public opinion survey showing that not many members of the public "got" the satiric intent behind Forsythe's commentary. The court brushed this aside, concluding that whether something is a parody is a question of law, not of public opinion.

Still, one can only quiver at the thought of what cherished childhood memories might next go on the satirists' block for ridicule. Parodies of Bert and Ernie? Of Mr. Rogers? Of the Teletubbies?

Well, okay, maybe not that last one. Some things are immune to parody ... because they're already a pretty good parody just the way they are.

Frank Zotter is a Ukiah attorney.