Yes, Barbie has been in court quite often. Is there a litigious Barbie, yet? … In Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003), the toymaker sued Tom Forsythe, a photographer, after he photographed nude Barbie using kitchen appliances, a “Food Chain Barbie” depicting a “Malted Barbie” on a vintage Hamilton Beach malt machine, and a “Barbie Enchilada,” which depicted four Barbies wrapped in tortillas and covered with salsa. Mattel sued for infringement of its patent. But, the Ninth Circuit found that Forsythe’s use of Barbie images was “fair use” and represented parody. The pictures constituted a transformative use of the Barbie images.
The Court noted that some of the photos depicted Barbie “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.” It is not difficult to see the commentary that Forsythe intended or the harm that he perceived in the roles of women in our society, noted the Court.
Inevitably, there would be a few lawsuits regarding a less wholesome image of Barbie. In Mattel, Inc. v. Internet Dimensions Inc., No. 99-Civ-10066, 2000 WL 973745 (S.D. N.Y. 7/13/2000), Mattel sued regarding the use of the Barbie name by an adult entrainment website. The court found the domain “barbiesplaypen” should be transferred to Mattel. The court noted that the Barbie dolls “with their long blonde hair and anatomically improbable dimensions, are ostensibly intended to portray wholesomeness to young girls.” But, said the court, the models on the barbiesplaypen.com site “were, um, engaging in anything but “wholesome activities.”
Suzanne Pitt created a “Dungeon Doll” Barbie. The doll included “Lederhosen-style bavarian bondage dress and helmet in rubber with PVC-mask and waspie.” This Barbie was depicted in a storyboard on the website and she was named “Lily the Diva Dominatrix.” This Barbie was involved in a story of sexual slavery and torture. The victim was another re-configured Barbie. Other adult products were also sold on the site.
The court did find that the makers of Dungeon Barbie were entitled to a “fair use” defense because these dolls were, “to put it mildly, ‘transformative’ and not merely ‘supplanting’ the original Barbie doll.” Mattel Inc. v. Pitt, 229 F.Supp.2d 315 (S.D. N.Y. 2002). The court noted the result might have been different if the website had depicted Barbie in a different style of cheerleader outfit. But, as far as the court knew, Mattel did not produce an “S&M” Barbie.
So, yes, Barbie is no stranger to the courthouse. See ABA Bar Journal here for more tales of Barbie going to court.