Don't mess with Barbie—especially not in a vaguely sexual way that also involves enchiladas or a vintage Hamilton Beach malt machine.

Thomas Forsythe learned this lesson the hard way during his years-long fair use fight against Barbie's maker, Mattel. Back in 1997, the self-taught Utah photographer created a set of 78 pictures of Barbie in, as a court later described it, "various absurd and often sexualized positions."

Forsythe called the series "Food Chain Barbie"; it was meant as a commentary on female objectification and consumer culture. The series included Barbie heads in a fondue pot, Barbies on the half shell, and three Barbies floating in a bed pan. Most of the dolls were nude.

"Math class is tough!"

You might suspect that a major company like Mattel has better things to do than drag a Utah photographer of eccentric Barbie pictures through years of litigation, but you would be wrong. Mattel held a copyright on the basic shape of Barbie's head, along with "parts of the figure including revisions to the hands, feet, neck, shoulder, and buttocks."

In 1999, Mattel sued Forsythe for copyright, trade dress, and trademark infringement. The case dragged on for years, lurching from one bizarre legal maneuver to another. How bizarre? At one point, angry after being sued by Mattel, Forsythe recorded a video of himself "executing" his Barbie collection. He didn't send the tape to anyone, but Mattel lawyers got a copy of it during discovery and attempted to use it as evidence at trial.

Later, in the attempt to show that Forsythe's work was not a "parody" protected by fair use, Mattel actually conducted a survey at a shopping mall. Mattel reps showed shoppers color copies of Forsythe's work and, as an appeals court put it later, "asked them what meaning they perceived. Relying on this survey, Mattel asserts that only some individuals may perceive parodic character."

All of this was about a trivial amount of money. Few people bought Forsythe's photos, and at the time of trial he had earned a mere $3,659 in gross revenue from the pictures. In another one of the case's strange twists, it emerged that "at least of half" of this money came from Mattel investigators who bought the pictures in order to make their case.

Gender roles

Forsythe's defense was simple: his work was parody, a commentary on consumer culture, an inversion of the pristine Barbie image. As such, it was a classic fair use case. Judges at both the district court and the appellate court level agreed.

In December 2003, the Ninth Circuit Court of Appeals issued an opinion which doubled as a stirring defense of fair use. Mattel's "survey" was tossed, since a parody "is a question of law, not a matter of public opinion." The "execution" video was irrelevant. Indeed, the judges showed a sensitivity to Forsythe's project that would make many a cultural studies professor proud:

Forsythe turns this image on its head, so to speak, by displaying carefully positioned, nude, and sometimes frazzled looking Barbies in often ridiculous and apparently dangerous situations. His lighting, background, props, and camera angles all serve to create a context for Mattel’s copyrighted work that transform Barbie’s meaning. Forsythe presents the viewer with a different set of associations and a different context for this plastic figure. In some of Forsythe’s photos, Barbie is about to be destroyed or harmed by domestic life in the form of kitchen appliances, yet continues displaying her well known smile, disturbingly oblivious to her predicament. As portrayed in some of Forsythe’s photographs, the appliances are substantial and overwhelming, while Barbie looks defenseless. In other photographs, Forsythe conveys a sexualized perspective of Barbie by showing the nude doll in sexually suggestive contexts. It is not difficult to see the commentary that Forsythe intended or the harm that he perceived in Barbie’s influence on gender roles and the position of women in society.

Mattel even went so far as to argue that the parody had "impaired Barbie's value" and that Forsythe should be held responsible for that loss of value. In essence, any commentary of criticism that made a product less valuable to its seller could be implicated under this theory, and the judges rejected it wholesale. ("It is not in the public's interest to allow Mattel complete control over the kinds of artistic works that use Barbie as a reference for criticism and comment.")

Mattel eventually had to pay more than a million dollars in legal fees to cover Forsythe's defense bill.

Fair Use Day

The Forsythe case was referenced today by the acting US Register of Copyrights, Maria Pallante, in a speech for the second annual World's Fair Use Day during which she played part of a 2 Live Crew song and argued that federal courts have done a great job, overall, at balancing copyright and fair use claims.

The ambiguity found in US fair use and its famous "four factors" can lead to years of litigation, as it did in the Forsythe case, but the "things that make fair use frustrating for some are the very things that have kept it flexible and adaptable over the years," said Pallante.

The US has had judge-created fair use rights for 150 years, but those rights were only written into the law in the 1976 Copyright Act. Since then, federal courts have stood up for the VCR, Internet search engines, and baked Barbies, even as they found that sites like Grokster had stepped into the realm of infringement.

Pallante ended her talk with a pro-fair use charge: "embrace it, respect it, and celebrate it." And ponder a world without fair use in which corporations could use copyright to sue critics and commentators, and could win with far more frequency than they do now.