You Don't Own Me: The Court Battles That Exposed Barbie's Dark Side

by Orly Lobel

Does the current hyper-protection of intellectual property promote more innovation or perversely impede it?

The contract defined “inventions” in the broadest possible way: “ ‘Inventions’ includes, but is not limited to all discoveries, improvements, processes, developments, design, know-how, computer data programs, and formulae, whether patentable or unpatentable.”

At the same time, mailing something to yourself does not prove you’re its creator. The poor man’s copyright is traditionally used by authors, who mail copies of their manuscripts to themselves without opening them to establish a date of creation.

it does not establish the original date of the work’s creation. At

In 1963, G&H and Mattel settled G&H’s patent infringement claim with a two thousand dollar per year license agreement, and they stipulated to the dismissal of G&H’s copyright claim in exchange for the dismissal of Mattel’s counterclaims. After settling the case, the German toy company entered into an agreement with Mattel.

induced the German company to accept a flat fee, instead of insisting on a per-doll royalty.

The central problem with Mattel’s claim was that the song never misled people into believing that Mattel produced it.

the Aqua song is a parody because it used the Barbie doll to comment directly about Barbie.

This is the primary concern with overly protecting intellectual property: that too much language, knowledge, and creative juices will be carved out and be deemed private property, making it impossible for the next artists, inventors, and competitors to continue to create and innovate.

Kozinski diverged from precedent when he applied a more balanced approach. He explained that the song’s repetition of the words Barbie and Ken were necessary for the purpose of parody. Even with the repetition, he said, no consumer is likely to think Mattel sponsored the song.

when the use of a brand involves a social meaning, such as criticism and parody, the right to free speech outweighs a risk of dilution.

The court understood the photographs as a critical commentary of Barbie’s influence on gender roles and the position of women in society.

The copyright and trademark statutes allow rewarding fees when the claims are abusive. This explains why Forsythe was granted two million dollars for defending himself against Mattel’s lawsuit.

But you can’t socialize your losses and privatize your gains.”

The contemporary expansion of the law has meant that small inventors and artists are left frustrated with few rewards from, or control over, their creations.