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Tyson, Kimball. "The Illegal Art Exhibit: Art or Exploitation? a Look At the Fair Use Doctrine in Relation to Corporate Degenerate Art." Southern Methodist University School of Law Computer Law Review & Technology Review 9 (2005): 425.
This article responds to the "Illegal Art" exhibit that toured the country and features Forsythe's work. The author (who repeatedly spells the artist's name "Forsyth") wants to assess whether or not Food Chain Barbie is fair use--even though the court has already ruled it is. She contends the artists are not sincere in their parodies, and thinks they are actually using art to serve their personal "greedy" objectives. After an abbreviated history of art, Tyson says these works are "an ancillary to Pop Art of the 1960's that take corporate images and use them in their works to convey a parodic message not only of the image itself but of the larger societal scheme of which it reflects." She also summarizes the Copyright Act and defines Fair Use. Instead of actually analyzing what the court said about Forsythe's work, she merely repeats it, and it seems, decides to agree with their ruling. One of the few useful things about this article is her comparison of Forsythe and Koons:
"In the Rogers case, there is no doubt that Koons' use of the original work would compromise Rogers' market of the "Puppies" and "would prejudice the market for the sale of "Puppies" notecards or any other derivative uses he might plan." 247 However, in Forsyth's situation, his photographs seem to have little to no effect on the commercial gain of Mattel based on their copyrighted Barbie Doll. Photographs of Barbie in a blender or in a casserole dish are not really going to have a significant chilling effect on Mattel's market; [this] weighs in his favor."
Tyson allows that the Barbie series is a fair use, but remains suspicious of Forsythe's motives. She writes, "The idea of using art and distorting already existing images to convey a message, to illustrate the absurdity of our times, seems very vulnerable to exploitation. In Mattel Inc. v. Forsyth, the artist had very distinct aims in his creation. Call this a derivative work, call it exploitation. Regardless, perhaps these artists used the well-known corporate images as a way to make money. Just as Volkswagen manipulated the automobile market and somehow made consumers feel as though they were really stepping out of conformity in buying a VW, so these artists, under the pretense of satire and art as corporate parody, had an objective no different than that of the corporations and consumer crazed society which they mocked: personal gain motivated by greed, selfishness, and envy." To me, her argument falls flat given that Forsythe did not profit hugely from the works. Art is his profession, his means of making a living, and to charge $400 for a work that he spent time creating does not seem greedy or unreasonable. She contradicts herself, but this piece is valuable to my research because it takes a position I haven't yet encountered and deals with the concept of artists' "worthiness" so to speak and the merit of their intentions.
Zando-Dennis, Julie. "NOT PLAYING AROUND: THE CHILLING POWER OF THE FEDERAL TRADEMARK DILUTION ACT OF 1995." Cardozo Women's Law Journal 11 (2005): 599.
This article is about the Dilution Act of 1995, which is relevant to the Forsythe case because Mattel claimed that his use of their trademark could both blur and tarnish it, meaning, confuse consumers or damage the product’s image/reputation. Zando-Dennis explains that works of satire and parody are most likely to be accused of causing dilution. Mattel has a history of filing suit as soon as they get wind of any unauthorized use of the Barbie name or image, says Zando-Dennis, who points to the website www.trademarks.org (devoted to criticizing Mattel) as evidence of the loathing their lawsuits have engendered amoung advocates of free speech. She delves further into the definitions of blurring and tarnishing, giving useful and clear examples how they can be both beneficial and harmful.
The second section of her article is dedicated to “Subversive Activities that Parody Mattel’s Barbie Doll,” including Mark Napier, an internet artist who produced digitally altered images of Barbie and the band Aqua, famous for their song "Barbie Girl" that all resulted in litigation. "Another artist, Paul Hansen, sold 150 modified Barbies as art works, on which he made a profit of around $ 2,000. Mattel sued for damages of $ 1.2 billion," she writes illustrating how rediculous Mattel makes itself appear. Forsythe's case is discussed in the section "Current Trends, Successes and Remaining Challenges." Zando-Dennis quotes Forsythe's lawyer as saying "This case is about insisting that a corporate giant can't stop an artist from using one of their products to create art and to comment on our society. If we were to allow that to happen, the content of our culture would be greatly reduced and emptied. We cannot allow Mattel to do that." Clearly, Zando-Dennis vigorusly agrees with the ruling in Forsythe's favor. She admires the way the case has "significantly liberalized trademark law" and hopes other circuits (the 8th in particular) will follow the 9th's lead.
Forsythe, Tom. Interview with Bill O'Reilly. The O'Reilly Factor. 28 Aug. 2001. FOX News.
This O’Reilly Factor interview took place shortly after the original ruling, in August of 2001. What’s interesting about this is that the merits of the case never really come up, and instead of debating whether it’s a copyright violation, O’Reilly wants to debate whether or not it’s art. Also he says he won’t take sides, O’Reilly implies very obviously that he sympathizes with Mattel, and, like the ignorant philistine that he is, doesn’t even listen to the Forsythe’s statement of purpose or reflect on what the artist was trying to achieve. Instead, he says he wouldn’t pay a nickel for these works and finds it interesting that the “US judge put your freedom of expression above the Mattel Toy Company’s right of intellectual property.” O’Reilly is really stuck on the cost of the work, which is not very expensive in actuality. “What a great country,” O’Reilly says facetiously, “where you can charge $400 bucks for that.” He refuses to acknowledge the specifics of the pictures (which appliances are used and why) and what kind different items can symbolically convey. This interview is a good example of how Mattel would like viewers to react to the pictures. They claim that the works are unsuccessful and that people don’t get them. What’s really clear is that people who make no effort to understand cultural commentary shouldn’t be left to decide what is and isn’t fair use, because if one of the measures of fair use is whether or not the work is parodic and/or critical the significance is completely lost on them.
Mattel Inc V Walking Mountain Productions. No. 01-56695, 01-57193. US Court of Appeals for the Ninth Circuit. 6 Mar. 2003.
Filed December 29, 2003. Opinion by Judge Pregerson. This appellate ruling confirms the district court’s grant of summary judgment to Tom Forsythe and dismisses Mattel’s claims that he infringed on their copyrights. Because this article contains a “background” section that details the previous trial extensively, I am going to use this case instead of the first one. It is more comprehensive and recent. The document begins by describing the nature of Forsythe’s work: “a series of 78 photos entitled ‘Food Chain Barbie’ in which he depicted Barbie in various absurd and often sexualized positions…For example, ‘Fondue a la Barbie’ depicts Barbie heads in a fondue pot.’” It talks about the series’ limited market success which amounted to an income of $3,659, half of which came from purchases made by Mattel investigators. The court notes his self-given title of “Artsurdist” and concedes that his work attempts to communicate a “serious message with an element of humor” that intends to critique and ridicule Barbie. It then goes over the various motions and actions that lead up to this particular appeal before reaching the “discussion” section.
This is really the heart of the case, where Pregerson explains why “Food Chain Barbie” is considered fair use. He confirms the three reasons cited by the district court which are that 1) his use was a parody criticizing Barbie 2) he only copied what was necessary for this purpose 3) his photos couldn’t affect the market demand for Mattel’s products. He argues that Forsythe’s work is transformative because it “presents the viewer with a different set of associations and a different context” than Mattel does. Forsythe did not display the entire Barbie in his pictures, and only showed what he needed to in order to convey his message. “We do not require that parodic works to take the absolute minimum amount of the copyrighted work possible,” Pregerson says. And although the works were intended to be sold commercially, the fact that they were unsuccessful shows that he’s not taking any business from Mattel because they appeal to different markets; Mattel to children’s toys, and Forsythe to adult-oriented artistic photographs.
Forsythe, Tom. "Food Chain Barbie & the Fight for Free Speech." National Coalition Against Censorship. 10 Aug. 2004. 27 Nov. 2006 <www.ncac.org/art/20040810~USA~Tom_Forsythe_Food_Chain_Barbie.cfm>.
Forsythe posted this statement on August 10, 2004 as a follow-up to the District Court’s June 24th ruling ordering Mattel to pay his legal fees, which amounted to $2.1 million over the course of five years of litigation, from 1999-2004. In this piece, he maintains that Mattel’s only tactical strategy was to overwhelm him with the cost of his defense and essentially bankrupt him into submission. He calls his case precedent-setting and says it should will discourage corporations from filing suit against artists who criticize their product and will encourage lawyers to work for other artists that get sued because they are more likely to be compensated, like Forsythe’s counsel was.
The rest of the statement details the Mattel v Walking Mountain productions saga from start to finish. He was served with a copyright and trademark complaint from Mattel, decided to fight back, searched unsuccessfully for representation, finally got some help from the ACLU of Southern California who petitioned a San Francisco firm (Howard, Rice, Nemerovsky, Canady, Falk & Rabin) to take the case pro bono. He defends his work as an “obvious” example of fair use—“political and social criticism presented with humor and parody.” Forsythe calls the trial “an essential fight” and says that free speech is paramount to our free society. He argues that it is not the government that censors us, but corporations. “They make their brand ubiquitous and then complain if anyone uses the brands to criticize the resulting crass consumerism,” he writes.
Because we are so sensitive to the threat of official censorship, we don’t notice when it is privately exercised by powerful companies with unlimited funds at their disposal. Forsythe calls the legal system a “boxing ring for the rich.” “I created the Food Chain Barbie series as a seriously funny stab at mindless consumerism, the impossible beauty myth and the advertising that brings it all into our lives,” he explains. The artist’s responsibility is thus to comment on the brands that dominate our lives in order to communicate with the world.