A triumph for art and free speech over commercialism.
February 24, 2001 4:02 PM   Subscribe

A triumph for art and free speech over commercialism. Or something like that. A photographer can't be prevented (by Mattel) from shooting pornographically posed Barbie dolls and selling the pictures as post cards. I wonder what they looked like. Hey, hot mama! (Courtesy of Firing Squad)
posted by Steven Den Beste (9 comments total)
That's a load off my mind. But I still can't blaspheme broccoli.

I hope this post will evolve into a discussion of how corporate interests use libel laws to protect themselves from critcism. The copyright approach is new to me, though.
posted by chino at 7:23 PM on February 24, 2001

It's interesting that blaspheming corporations can backfire too. The now famous MacLibel trials have been an unbelievably huge loss for Mac Donalds Corporation (brand name damage went way beyond anything they could conceivably have won in court... and of course that was the whole point so far as the defense was concerned!) and are likely to make them think twice in the future.
posted by muppetboy at 7:55 PM on February 24, 2001

Finally a trademark ruling that makes sense.
posted by fleener at 8:17 PM on February 24, 2001

Mattel has been after this guy forever, too. They are really lawsuit happy when it comes to protecting their supposed copyrights on Barbie.
posted by jessamyn at 8:33 PM on February 24, 2001

i wonder if it's anything like these pics...
posted by dutchbint at 8:57 PM on February 24, 2001

It's odd, but the ACLU makes some pretty boneheaded decisions, making me think back to an Onion article where they defended wackos who were shooting up their offices....

posted by Capn_Stuby at 11:39 PM on February 24, 2001

This case, in detail, was certainly a strange one but the fundamental principle involved is actually a good one, and I'm actually glad that the ACLU is defending this case.

First, it should be pointed out that there hasn't been a final decision. What did happen is that Mattel's petition for an injunction was turned down, and that was sustained on appeal. But that is also good, because that usually means that the final case will go the other way.

The real point is that in recent history trademark law has been used by corporations as a way of stifling free speech. Taken to its logical extreme, this approach could be used to suppress any and all negative reviews of a product, in as much as a review must necessarily reference the trademark describing the product. And that's a scary thought.

So at its heart what this case is really about is "fair use", something which has been getting increasingly nibbled at over the last ten years.

Trademark law is founded in the Constitution, and so is free speech. They're in conflict, and fair use is the statement of where free speech is more important. Trademark law was never intended to stifle free speech, but that's how it's starting to get used recently.

And that's why the choice of this case is interesting. If a blatantly offensive (at least to some people) use of a trademark can be demonstrated as being fair use and beyond the ability of a trademark holder to suppress, then it means that a whole lot of other things will be protected.

The ACLU may be crazy like a fox on this; they've deliberately chosen a case which is at the fringe because if they win then they've protected a much larger territory than if they chose something more safe. If they had tried for a smaller gain, they might have had to refight the case several times to expand the ground covered by fair use. But if they win this one, they'll never have to visit it again. If pornographic photographs of Barbie are protected, clearly negative reviews of products, or their use in satire, or any number of other things will be too.
posted by Steven Den Beste at 6:36 AM on February 25, 2001

I thought it very amusing that the TITLE for the article was "Parody web site showing kitten torture ..."

When I was in college, I had an iconoclastic art professor who assigned us to use a Barbie doll (or equivalent) to create a peepshow. We had to build a box about 18" around, install a security peephole, buy a doll and props, and create a "shocking" scene. Other students created everything from a threesome to bondage. Mine was a topical commentary on sex education, complete with blackboard and an apple on teacher's desk.

Yup, I still have it. I should put up some pictures someday ... after this guy's off the hook. ;-)
posted by dhartung at 8:21 AM on February 25, 2001

Now if we could only get Superstar made legal, all would be well.

The next step: Berenstain Bears porn!

posted by rodii at 8:58 AM on February 25, 2001

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