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June 28, 2004 12:00am
Artist Wins Battle Over Barbie
Source: New York Times
by: Bill Werde

Seven years ago when Tom Forsythe, an artist and photographer, was searching for a subject for a new project, he settled on Barbie -- producing a series of 78 photographic images of the wildly famous doll showing her nude, and sometimes posed provocatively, in or around various household appliances.

"I thought the pictures needed something that really said 'crass consumerism.' and to me, that's Barbie," Forsythe said. "The doll is issued in every possible role you can imagine and comes with every possible accessory for each and every role."

Forsythe began experimenting with images of the doll, and soon developed a new theme, which he called "Barbie's power as a beauty myth."

But his work was not met with universal acclaim, and his chief critic was Mattel Inc., manufacturer of the Barbie doll since 1959.

So in the summer of 1999, only weeks beyond Barbie's 40th birthday, Mattel sued Forsythe for copyright and trade infringement.

After a lengthy legal tussle, which included a series of appeals, a federal judge late last week ruled that artists are allowed to play with dolls.

And in a strongly worded order, Judge Ronald S.W. Lew of the Central District Court of California instructed Mattel to pay Forsythe's legal fees of more than $1.8 million.

Neither Mattel officials nor the toy company's lawyers in the case from the Los Angeles firm of Quinn Emanuel Urquhart Oliver & Hedges, responded to multiple phone and e-mail messages on Sunday.

They still hold the right to appeal the award, but would have to appeal to the 9th Circuit Court that already instructed the district court to consider awarding attorney's fees.

Johnathan Zittrain, a professor at Harvard Law School who specializes in Internet and copyright law, said that the case might set a precedent.

"It's enough to give corporations with brands they want to protect and expand pause to consider whether to simply reflexively unleash the hounds the minute they see somebody doing something that relates to their brand of which they don't approve," he said. "It may send a signal that a 'take no prisoner' litigation strategy against the little guy has new risks for the plaintiff."

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