Playing with Barbie: Sex, Copyright and the Hypocrisy of Mattel

Posted on December 20, 2015

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 “For decades, Barbie has remained torpedo-titted, open-mouthed, tippy-toed and vagina-less in her cellophane coffin—and, ever since I was little, she threatened me.” — Susan Jane Gilman of Girl W/Pen

I have an online friend who once referred to me as “Commando Barbie.” It made me laugh, but there was a sardonic side to her witty moniker. It aroused images of the sassy female soldiers from Quentin Tarantino’s Kill Bill films who has raved publicly about his “girl” fights in the series. In an ESPN interview, he describes them as “brutal bitch fights.” He says, “They’re so beautiful, so it hurts all the more. But it’s never gross.”

Ahh, yes. The gloriously hot and dangerous (but never gross) femme fatale of male fantasies – an objectification that demonstrates how susceptible the imaginative space is to perversion — and even Barbie isn’t immune.

In 2009, Jerry Oppenheimer published his exposé, Toy Monster: The Big, Bad World of Mattel, which included the salacious tales about Barbie and her creator Jack Ryan.

 During his lifetime, the Father of Barbie had his name on more than a thousand patents, and was a man of seemingly as many personas – inventor, designer, and serial Casanova, to name just a few. (p. 5)

Jack Ryan also had a secret.

Except for a small circle of confidantes, few knew that the Father of Barbie was a mass of treatable and untreatable emotional problems and addictions, including what later became known as hypersexuality, a manic need for sexual gratification, which was one of the symptoms of his bipolar disorder. (p. 6)

Ryan had a penchant for a particular type of female, greatly exaggerated in the final design of his Barbie: long legs, small waist and large breasts.

When Jack talked about creating Barbie, or improving Barbie, he would light up and describe the breasts and the legs and how tall she needed to be. He was intrigued by that,” recalls Gnass. “When he talked about Barbie it was like listening to somebody talk about a sexual episode, almost like listening to a sexual pervert talk about creating this doll (39-18-34).

Lilli Knock Off and the Hypocrisy of Mattel

Barbie, the “All-American Girl”, was modeled on a German doll Lilli — a tribute to a character from the comic strip in the newspaper, Bild Zeitung, created by cartoon artist Reinhard Beuthien. Lilli was a gorgeous, saucy, buxom blonde who often played ‘cat and mouse’ games with her many male admirers. The “tarty doll” was sold in bars, tobacco shops and similar adult businesses as a titillating gag gift for men. It is the same doll Ryan’s wife discovered in 1955 (purchased for her own children), and of which, he then used to design an iconic doll for American children based on his own lusty desires. She made her way to America and changed her name to Barbara Millicent Roberts. She was Lilli in disguise with no nipples, no pubic hair and vagina-less.

This is a rather striking fact since over the years Mattel has fought countless legal battles or threatened legal action by using copyright laws against anyone who might “tarnish” or “desecrate” Barbie’s apparently fragile and virginal image.

Copyright is the Cinderella of the Law

Copyright is the Cinderella of the law. Her rich older sisters, Franchises and Patents, long crowded her into the chimney-corner. Suddenly the fairy godmother, Invention, endowed her with mechanical and electrical devices as magical as the pumpkin coach and the mice footmen. Now she whirls through mad mazes of a glamorous ball. — Zechariah Chafee Jr., Reflections on the Law of Copyright, 45 Colum. L. Rev. 503, 503 (1945).

In the US, as in many countries, there is two competing interests at stake in copyright law:

  • The interest of the author of the creative work
  • The interest of the public in benefiting from the work.

Because of the strong public interest, a copyright holder’s rights are not unlimited. For example, the Copyright Act protects the expression of an idea, but not the idea itself. Facts are also excluded from copyright protection. Both facts and ideas remain in the public domain.

The Fair Use Doctrine

As outlined on the Stanford University Libraries’ website, “In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.”

Big corporations like Mattel have significant financial interests in its trademarks and view them as valuable property, often going to great (even ridiculous) lengths to protect their interests.

In 1997, Mattel Inc. filed suit against MCA Records Inc. for trademark infringement and dilution resulting from the alleged unauthorized use of its Barbie doll trademarks and likeness in the hit song “Barbie Girl” by the Danish pop group Aqua. The suit claimed that the song contained lyrics that “associate sexual and other unsavory themes with Mattel’s Barbie products.” However, in 2002, a judge ruled that the Aqua song was protected as parody. The ruling included a number of sentences rarely found in legal opinions:

“If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.”

“The parties are advised to chill.”

After reading his whole opinion (via Wiki), Judge Alex Kozinski is now my new copyright superhero judge.

Ironically, twelve years later, the toy maker capitalized on this very scandal by creating its own version of the song adapted for its Barbie advertising. Aqua is not the only artistic endeavour to have suffered and triumphed over the ruthless boxing gloves of Mattel.

Food Chain Barbie by artist Tom Forsythe

In 1999, Mattel sued the artist and photographer Tom Forsythe for copyright and trademark infringement. Thankfully, the ACLU of Southern California and the firm Howard Rice stepped in to stop Mattel’s continued use of litigation as a way to bully artists into abandoning their First Amendment rights. The artist used the dolls to parody Barbie’s embodiment of America’s culture of consumption and conformism in a series of 78 photographs called Food Chain Barbie.

In February 2001, Mattel lost a motion for a preliminary injunction in the Forsythe case. Then, in June 2004, after a very lengthy legal battle including a series of appeals, a federal judge instructed Mattel to pay legal fees of more than $1.8 million. In his order, Judge Ronald S.W. Lew wrote the following:

Plaintiff had access to sophisticated counsel who could have determined that such a suit was objectively unreasonable and frivolous. Instead it appears plaintiff forced defendant into costly litigation to discourage him from using Barbie’s image in his artwork. This is just the sort of situation in which this court should award attorneys fees to deter this type of litigation which contravenes the intent of the Copyright Act.

But Mattel’s crusade didn’t stop there. In 2004, Mattel again went on the attack, but this time against a small business called Barbie’s Store in Calgary, Canada that specializes in selling bondage clothing for “bad boyz and girls.” The name of the store owner and clothing designer is Barbie Anderson-Walley. Mattel claimed it wasn’t the naughty nature of the store’s products that sparked the trademark suit, but the fact that Barbie’s Shop sells clothing: “We own the Barbie name, clothing and dolls. Even if your name happens to be Tommy, Ralph or Barbie, in some areas that’s already a trademark.” However, in 2005, the case was dismissed by a New York court. (For more details on the case read Toy Monster.)

MGA’s new Bratz range includes this Study Abroad collection Photo: MGA

The Bratz are Back

In 2005, Mattel continued to push the limits of its ‘bully meter’ after it filed a lawsuit against MGA Entertainment, accusing the Bratz owner of intellectual property theft because the dolls were conceived by a designer while he was employed by Mattel. By 2008, a California judge had ordered MGA to stop making and selling Bratz dolls and turn the franchise over to Mattel.

However, in another superhero twist, the ruling was overturned in the appellate court by Judge Alex Kozinksi, who wrote, “Mattel can’t claim a monopoly over fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing – these are all unprotectable ideas.” Wham bam thankyou … sir!

The earliest, and most significant, attempt by Mattel to control the “image” and “meaning” of Barbie on the internet was when it tried to enforce the shut down of “The Distorted Barbie” (view archived version here) website created by digital artist Mark Napier.

The Distorted Barbie Online project,1997, Mark Napier

In 1996, the company sent a cease-and-desist letter to Interport, Napier’s Internet service provider. Interport, not wanting to become embroiled in a law suit, asked Napier to comply. Although Napier initially considered moving to another ISP, in the end he chose to comply with Mattel’s legal demands by replacing his old meme with a new version of the image barely discernible as Barbie and changed its name to Distored $arbie.

Napier’s web-art installation displayed digitally altered images of Barbie dolls as a way to comment on Barbie as a cultural and commercial symbol and pop-icon:

I created this site to explore the phenomenon of Barbie. Not Barbie as a toy or collectible, but Barbie as a symbol that a culture has created, absorbed, shaped, and been shaped by. The site is a visual exploration.

As author Michael Strangelove so eloquently argues in his book, The Empire of Mind: Digital Piracy and the Anti-Capitalist Movement, “Barbie plays a very specific role within the economic system – the erotization of the female identity and the socialization of each new generation of consumers. The Mattel Corporation is acutely aware of Barbie’s role as the pink programmer of young consumers and profits handsomely from the plastic princess of consumers.” Strangelove asserts that Barbie’s role as a programmer of consumers (or a colonizer of the consumer imagination) has made her a popular target for appropriation and redefinition. While its dedicated consumers (and fans) replicate Mattel’s approved meanings, Strangelove points out that others have chosen to subvert Barbie with a wide variety of alternative meanings such as drugs, alternative sexuality, single motherhood, religious meaning and even homicide.

Self-taught photographer Mariel Clayton is responsible for a series of hilariously gruesome murder scenes featuring Mattel’s iconic blonde-bombshell. When asked why she did this to Barbie, her response was,

“I intensely dislike the stereotype that the “ideal” female fits no current authentic female form. You can’t get to be Barbie without an ocean’s worth of peroxide, 27 plastic surgeries and a complete lack of intelligence, so it irritates me immensely that this is the toy of choice women give to their daughters to emulate.”

Her solution? Behind the bimbo-brained, lipstick smile lurks the black heart of a true American Psycho: Barbie does murder (not Dallas) – and lots of it. You can visit her website at www.thephotographymarielclayton.com

Mummified Barbies, 1991 – Present, Barbie Dolls, bees wax and twine, 12 x 2 x 2 inches, each, E.V. Day

In contrast, an ongoing project “Mummified Barbies” by New York based installation artist and sculptor, E.V. Day, explores western cultural ideas surrounding beauty and “the often obsessive quest in contemporary society to preserve female beauty” (Andrea Cashman). Day mummifies or preserves her Barbies in seductive materials like beeswax, twine and silver chrome flakes, shrouding the doll’s stereotypical beauty and transforming this popular icon into majestic and playfully subversive objects.

Wrapping and silencing this vivacious action figure into a phallic totem, we have a chance to see her more objectively. Mummifying and shrouding Barbie literally ties her to ancient and ongoing cultural practices of fetishizing the female form. – artist statement, E.V Day

You can visit her website at evdaystudio.com

I would love to read your comments — please feel free to share your opinions or thoughts in the box below.  Thank you!

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Posted in: Art, Censorship, Crime