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.
