The Issue: Copyrights and Artistic Expression
Fundamentally, a copyright is just that--the right to copy. The purpose of copyright law is to promote the progress of science and art by restricting who can copy, reproduce, and publicly display artistic and scientific works. Indeed, there would be much less incentive for artists and scientists to create new works if others could immediately reproduce the works with no credit or compensation given to the originals' authors. As with trademarks, there is an inherent tension between copyrights and the right of free speech. By definition, a copyright is a specific restriction on who can say what. On the other hand, advances in science and art generally rely on works that came before them. Recognizing these issues, federal law allows several exceptions to copyright protection. The "fair use" exception excludes from copyright protection works that criticize and comment on another work. Determining "fair use" involves weighing several factors as they apply to a particular work and then considering them in light of the purposes of copyright law. The "purpose and character of use" factor asks to what extent a later work transforms or changes an earlier work, thereby giving the later a different purpose, character, meaning, or message. The U.S. Supreme Court has recognized that works of parody and satire, like works that comment and criticize, often sufficiently transform a work to qualify for the fair use exception.
The Case: Mattel, Inc. v. Tom Forsythe et.al.
In 1997, photographer Tom Forsythe developed a series of 78 photographs entitled "Food Chain Barbie." While the work varied, the photos generally depicted one or more of the popular dolls juxtaposed with vintage kitchen appliances. Forsythe explains that his work is a critique of our culture's objectification of women and he chose to parody Barbie because he believes the doll represents "the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture." Forsythe further explains that his photographs are intended to convey a serious message with an element of humor. Mattel, Inc., the manufacturer and owner of the Barbie copyright, was not amused. It sued Forsythe alleging, among other claims, that his work violated its copyright. The U.S. Court of Appeals for the Ninth Circuit disagreed. The Court found that through successful marketing, Mattel had established Barbie as "ideal American woman" and a "symbol of American girlhood." Forsythe's work turned this image "on its head," said the Court, finding the photographs a parody of everything the doll has come to signify. As such, "Food Chain Barbie" qualified for the fair use exception.
http://www.tjcenter.org/ArtOnTrial/copyright.html
Malted Barbie
(8" x 10" photograph from the series Food Chain Barbie)
by
Tom Forsythe
