Mattel Inc., v. Walking Mountain Productions
353 F.3d 792 (9th Cir. 2003)

  • Forsythe (who's publisher was Walking Mountain), produced and sold photographs of Barbie dolls placed in precarious positions. Mattel, who owned a copyright on Barbie dolls, sued for copyright infringement.
    • Forsythe also used the name "Barbie" in the titles of his photos.
  • The Trial Court found for Forsythe. Mattel appealed.
    • The Trial Court found that Forsythe's use of Mattel's copyrighted work was fair use.
      • Forsythe claimed that he used Barbie because she is an iconic character associated with the objectification of women.
    • Forsythe had earned less that $4k for his photo series.
      • Over half of that was from private investigators hired by Mattel!
  • The Appellate Court affirmed.
    • The Appellate Court noted that the photos established a prima facie case for copyright infringement under 17 U.S.C. 106.
    • However, the Court also noted that 17 U.S.C. 107 (fair use) provides an exception that excludes from copyright restrictions certain works that criticize and comment on another work.
      • Factors to be used to determine if a work is fair use include:
        • The purpose and character of the use including whether such use is of a commercial nature or is for nonprofit educational purposes.
        • The nature of the copyrighted work.
          • The more creative the copyrighted work, the harder it is to justify fair use.
        • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
          • Copying 5 pages out of a textbook is more likely to be held fair use than copying the entire book.
          • Of course, with a parody, you have to use enough of the original that the audience knows what you are parodying.
        • The effect of the use upon the potential value of the copyrighted work.
          • Because people will purchase the knock-offs instead of the original, not because a harshly critical work causes a change of public opinion of the original product!
    • The Court found that Forsythe's photos were a fair use.
      • It was a parody meant to criticize Barbie.
      • It only copied what was necessary, and added additional elements.
      • It would not affect the market for Barbie dolls, because little girls would probably not be satisfied receiving a Forsythe print in lieu of an actual doll.
  • Under the 1st Amendment, you have a right to criticize, similarly, the fair use doctrine gives you the right to criticize the work of others.