In 1999, Mattel sued photographer and self-described “absurdist” Tom Forsythe for taking pictures of Barbie dolls in rotisserie ovens, fondue pots, margarita glasses, etc., and making the images for sale as postcards. Mattel argued that the photographs were a copyright infringement and dilutive of their trademarks — but the court disagreed. One absurd fact came out over the course of litigation: before Mattel brought Forsythe’s work to light, he had only sold about $3,600 worth of postcards — and, according to Ars Technica, “‘at least half’ of this money came from Mattel investigators who bought the pictures in order to make their case.”
As Tom Forsythe says on his web site; “The ACLU and some great attorneys from Howard, Rice, Nemerovsky, Canady, Falk and Rabkin helped protect my work and extend the definition of Fair Use by prevailing against Mattel in federal court.”
Forsythe placed Barbie in various food preparation settings, including posing the doll in a malt mixer and in a toaster oven. Forsythe also photographed impaled Barbie heads in an “allusion to Shakespeare’s reference to being ‘hoisted on your own petard,’” Forsythe said in an affidavit. Some of the photos posed Barbie in a sexually provocative manner. Forsythe toured the country with the photograph collection and sold postcards and 8?x10? prints of the images.
Mattel claimed the photographs violated its trademark rights in the doll by causing consumers to mistake Forsythe’s photos for true Barbie advertisements. Mattel also claimed Forsythe diluted or tarnished the Barbie trademark in photographs it described as “crudely sexual and violently misogynistic.” For example, Forsythe photographed Barbie with the blades of a kitchen mixer between her legs.
Mattel also argued it owned a copyright in the head and body of Barbie and that Forsythe violated that copyright by using the doll in his photographs. Forsythe disputed that Mattel was the original creator of the Barbie doll image, citing a German doll he said Barbie was modeled on. Moreover, Forsythe argued that his use of the doll in the photos was “fair use.” Fair use, a defense to copyright infringement claims, permits copyright violations for certain limited uses, such as news and parody.
