The Face That Launched a Thousand (Law)Suits

The portrayal of Barbie has been the subject of many lawsuits in the past decade. A survey of news articles since 1990 reveals three main trends in litigation: (1) copyright infringement suits against other toymakers, (2) suits against the unauthorized use of images in fan circulations, and (3) the trademark equivalent of "libel" or "defamation" suits against artists using Barbie and her world as commentary.

It is the third of these categories that proves the most interesting. The First Amendment right to free speech has been interpreted through the court systems (all the way to the Supreme Court) to protect certain circulations of copyrighted work; this protection is partially outlined in trademark law as the "fair use" clause. Of course, as outlined the passage is quite (deliberately?) vague. Literally thousands of lawsuits are filed everyday for violation of copyright law; many of these are defeated under the "fair use" clause, and many more are never filed because of previous cases deemed "fair use" under this clause. Parody, or artistic commentary, is a common practice protected as "fair use."

The crux of the "fair use" argument in trademark litigation hinges upon whether the recirculation is for commercial purposes or somehow damages the value of the original trademarked item. In the case of Mattel and its trademarked "creation" (a point of which we'll speak more later) Barbie, the lawsuits of the third category above reveal a common theme: the artist/defendant has through his/her depiction of Barbie somehow devalued her, harmed her "image" in the eyes of the consumers/fans.

The most interesting twist on these "defamation" lawsuits is Mattel's treatment of Barbie herself. It seems that this cultural icon, who is marketed as a personality rather than a toy, rather conveniently becomes "trademarked property" when recirculated in a way not in keeping with Mattel's constructed image.

In The Cultural Life of Intellectual Properties, Rosemary Coombe discusses the concept of author/ownership of trademarks, arguing that trademark law fails to address the postmodern slippage of signifier/sign in its Lockean "reap where you sow" mentality. Postmodern intertextuality transcends this concept in the recirculation of signs, building new connotative meanings into "owned" texts. As Coombe states, "One could argue that if the public creates meanings for Barbie in excess of the signifier's capacity to signal Mattel's toy, they have done the sowing, and thus they should do the reaping; in short, authorship of such meanings might be seen to reside in the public sphere" (67). In short, Mattel may own the image of Barbie as a child's toy, but not as cultural icon, therefore cannot sue for copyright infringement in such instances; this theory is upheld in practice as Mattel repeatedly loses the lawsuits it files in category three above.