Does The Distorted Barbie violate Mattel's copyright?

October 18 1997

Two days ago I received an email from my internet provider requesting that I remove my web page from the Internet. They explained that a lawyer from Mattel had contacted them and claimed that The Distorted Barbie violates Mattel's copyright on Barbie. The email stated

...Interport is in a position of potential liability... We hope that you would appreciate our position and, as such, voluntarily remove the Web page from the Internet until the issue is resolved between Mattel, Inc. and yourself. Interport must have the Web page removed as of Wednesday 22 October 1997.

On October 17, I received the following letter from the lawyer for Mattel, forwarded to me by Interport:


At least one other Barbie parody web site has received the same letter, and at this time the author of that site has decided to remove his pages from the web.

Mattell has a history of carefully (or even agressively) protecting their copyright of the Barbie image. The following is from an article describing Mattel's attack on a collector's publication:

Mattel filed a federal lawsuit in Los Angeles against the publisher of several collector-oriented periodicals that mix flattering photos of Barbie with barbed new product reviews and occasional satire. The suit accusing the Miller's publications-an assortment of newspapers, magazines and price guides-with copyright and trademark infringement aroused the Pink Power movement.
...
Mattel refused to back down regarding the Miller's publications, maintaining that the toy company also has rights. Ann Parducci, one of the Mattel vice presidents at the meeting, said the publications unfairly profit from using Barbie's images without permission. She believes that the Pink Anger movement, while loud, is small.
...
Challenged this week by a collector at Mattel's annual meeting, an event punctuated by screenings of Barbie commercials, Chief Executive Jill E. Barad stood her ground. A photo spread in a recent issue of Miller's put Barbie in an unflattering light, she said.

"It showed Barbie with alcohol, Barbie with pills," Barad said. While professing that Mattel "loves the collectors," Barad was unambiguous about her priorities: "What I do in my job, first and foremost, is protect Barbie."

"BARBIE PROTESTERS AREN'T PLAYING AROUND" By DENISE GELLENE, LOS ANGELES TIMES

In her book Forever Barbie, M. G. Lord writes:

"Mattel wishes to impose its authorized vision on the public, but the public has other plans. Barbie colonized people's imaginations in childhood, and they are impelled to bear witness."

she continues:

"... the corporation has three choices: It must co-opt the artist's work... It must commission art and impose 'guidelines.' Or it must do its best to squash it."

She explains that in the case of a portrait of Barbie painted by Andy Warhol, Mattel and the Warhol estate must give permission to reproduce the portrait. In this way Mattel 'co-opted' the artwork.

This raises a fascinating question: Does the public have a right to use an image that is powerfully embedded in the public awareness, even if that image is owned by a corporate entity? For instance, do the people have a right to censor "Joe Camel", based on the potential harm that image could do to underage smokers. Apparently that case has already been made and Joe Camel is disappearing from cigarette advertising. The case hinged on whether Camel cigarettes were being marketed to minors, something clearly illegal.

Artists face different and much less clear cut legalitities when they reproduce Barbie in artwork, but the issue underneath is similar. Barbie is part of the national consciousness. Ask anybody what they think of Barbie and they will respond as if they met her once at a party, or have known her for years. People speak with strong emotion and opinion about their experience growing up alongside Barbie. She is more than a product. She is part of an ongoing national conversation that includes themes of beauty, sexuality, ugliness, gender roles, family values and health to name just a few.

In terms of profit, the image of Barbie is owned. But in terms of conversation is it possible that the image of Barbie is "owned" by the society that experiences that image? I'm looking at the web in this case as a medium that is more like conversation than like broadcasting or paper publishing. Particularly in the case of personal websites, where there is no profit nor any attempt to sell any product, the web serves up a global forum, a place for debate, for thought, for reaction to ideas. While books are typically text, the Web allows for rapid dissemination of text and images. The two forms may be intermingled casually and at low cost. This combination of rapid and cheap access to a distribution channel creates an environment for global conversation, more like a huge town hall or bulletin board that is at once far reaching and intimate. And this conversational form includes images on the same level as text.

Is it appropriate to apply copyright laws that were invented for paper reproduction to an environment in which electronic conversation takes place? Internet providers have been seen as publishers, as if they can control content, and decide what will be published at what won't. In fact they are providing access to a technology, more like Kinko's Copies than a publisher. Can Kinko's be sued if an artist xeroxes Barbie, or copies a book, in one of their copy shops?

I do not mean to imply that there are any easy answers here. As an artist, I appreciate and respect copyright laws. What I am suggesting is that an image, when it becomes nearly ubiquitous within a culture, ceases to be simply property. It enters into and becomes part of an ongoing cultural conversation. And the web is a medium that calls attention to -- and gives concrete form to -- this conversation.

The web is a space for converation. And that challenges the rules of copyright and print publishing.

Thanks for listening.

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