Meet Copyright Barbie – is there anything she can’t do?

Barbie is now the ultimate career woman, with over 200 jobs under her belt since 1959, including Astronaut Barbie to Firefighter Barbie. It seems there's little she cannot do – except, in some cases, protect her own copyright. Yet, the cases where she has failed to protect her copyright (and others like them) may actually have been a contributory factor to her evolution and success.

Protecting the Barbie brand

Barbie has always been divisive yet iconic, and the release of the new Barbie film has stirred up excitement and nostalgia for Barbie lovers of all ages.

According to BrandFinance, the world's leading brand valuation consultancy, the Barbie brand’s IP is now worth $701 million, so it's understandable that Mattel wants to protect it. Mattel's licensing team have been hard at work when it comes to exploiting their own IP to market the film, collaborating on everything from make-up to hair tools, drinks, clothes and even roller skates.

With well over one billion dolls sold worldwide, Barbie is a brand worth protecting, and Mattel knows it. They have developed a fierce reputation for legally pursuing those who, in their opinion, infringe their Barbie copyright and damage the Barbie brand.

Yet, Barbie has been featured in several artists’ work, often in a negative light, and Mattel has been unable to stop some of these unauthorised uses despite owning the copyright.

How easy is it to claim copyright infringement in a world that values freedom of expression?

Copyright infringement occurs when somebody uses the whole or a substantial part of a copyrighted work without the copyright owner’s permission, subject to certain exceptions.

Mattel has been unsuccessful in three cases in particular: Mattel v Pitt, Mattel v MCA Records and Mattel v Walking Mountain Productions. 

In Pitt, Mattel sought an injunction against Ms Pitt, who created and sold a “Dungeon Doll”, which appeared to be a Barbie doll that had been repainted and dressed in bondage-style costumes. Mattel believed this infringed and damaged Barbie’s innocent and wholesome image. However, the court ruled in Ms Pitt’s favour and held it was “a legitimate freedom of artistic expression”.

In MCA, Mattel attempted to sue the record company in relation to Aqua’s hit song “Barbie Girl”, which made fun of Barbie and the values that Aqua contended she represents (being nothing more than a plastic, blonde “bimbo”), much to Mattel’s horror. This case went all the way to the Supreme Court only to be dismissed as the song was found to be a parody and a criticism of a copyrighted work.

Finally, Mr Forsythe produced and sold a series of “Food Chain Barbie” photographs in Walking Mountain. The photographs portrayed Barbie in sexualised and dangerous positions with kitchen appliances whilst maintaining her perfect smile, oblivious to the danger. The work was a commentary on the harm Mr Forsythe perceived Barbie’s influence on the gender roles and purpose of women in society. Mattel claimed copyright infringement, yet the court found in Mr Forsythe’s favour, and Mattel was forced to pay 1.8 million dollars in his legal fees.

Despite each use of Barbie being unauthorised, none of the artists were found to have infringed Mattel’s copyright due to a “fair use” defence under U.S copyright law, which promotes the freedom of expression by permitting unlicensed use of copyright-protected works in certain circumstances.

Although the above cases were all brought in the U.S. under U.S. copyright law, the concept of “fair use” is very similar to the permitted act of “fair dealing” under English copyright law.

Fair dealing

There are certain acts permitted in relation to copyright works which include fair dealing for the purposes of:

• research and private study;
• criticism or review;
• reporting current events;
• quotation; or
• parody, caricature, pastiche.

The above acts must, wherever practicable and amongst other specific requirements, be accompanied by a sufficient acknowledgement (i.e., identifying the work by its title/description and the author/creator).

Under English law, the uses of Barbie in the cases above could potentially be held to be fair for the purposes of “criticism or review” and/or “parody”.

It is unlikely that the reasonable person would confuse the Dungeon Dolls, Food Chain Barbie or Barbie Girl song to be works endorsed by Mattel as they clearly appear to be critiques and/or parodical works.

However, these matters are very much fact specific, and whether the use of a copyrighted work will fall within the scope of the permitted uses will depend on the exact circumstances of the use.

Barbie then versus Barbie now

From her inception, Barbie has been idolised as the “perfect American woman”. However, over the years, concerns have been raised about the seemingly unattainable body proportions, unrealistic beauty ideals, and stereotypical gender roles Barbie has traditionally endorsed, which are no longer appropriate or representative of modern society.  

To counteract the criticism of Barbie, Mattel adapted the doll with the times and now produces dolls that are more diverse in their ethnicities, physical appearance, personalities, and careers – an evolution which has undoubtedly contributed to Barbie’s continuing popularity. The fact that Mattel has struggled to prevent the use of Barbie for the purposes of criticisms, like those described above, using their rights under copyright law, may have actually contributed to their successful adaption of Barbie for the better.

What can we learn from Mattel’s approach to copyright infringement? 

Whilst you may disagree with somebody’s interpretation of your work, it does not mean that your copyright has necessarily been infringed or that you have a cause for legal action.

Although there are very limited circumstances in which the use of a copyrighted work will be permitted use, this will be fact specific. The time and costs associated with court proceedings can be significant, and care should be taken to avoid any allegation of copyright infringement.

Intellectual property can seem like a complex and daunting area of law, but if you get it right from the outset, you’ll save your organisation time and money in the long run.

We've designed a course to give you the knowledge to manage your intellectual property confidently. The course will provide you with practical tips to help identify risks and common pitfalls, as well as highlight potential opportunities so that you can achieve your commercial objectives.

Find out more and book your place 

To speak about any of the issues raised in this article contact Alex Speirs on 0191 211 7997 or [email protected]