Coming soon to Toys ‘R Us – Nominative Fair Use Barbie

August 10, 2012

Nominative Fair Use BarbieI went to the Uptown Art Fair this weekend, which is probably Minneapolis’ biggest of the summer (and I only spent about $22, which is some sort of personal record.)

One of the most interesting booths, to me, was that of photographer Nicole Houff. It wasn’t Houff’s photos of mod-ish, retro Barbies that interested me (though some of them are pretty great), but a snippet of conversation I overheard Houff having with a customer.

The customer asked her if she had permission from Mattel, the maker of Barbie, to create her work. Houff kind of shrugged and said she had a relative who was a lawyer who told her it was okay.

She’s right (or I guess her relative is), but let’s examine why.

Houff’s work brought to mind Mattel, Inc. v. Walking Mountain Productions, a case that also involved a photographer using Barbie as a model.

Now, the work in Walking Mountain was considerably more…um, avant-garde than Houff’s. As my Intellectual Property textbook put it, the work of photographer Thomas Forysthe “usually depicts a nude Barbie in danger of being attacked by various household appliances.” (Check out one of his more SFW artworks here).

Understandably, Mattel wasn’t thrilled about its (relatively) wholesome icon of American girlhood being used a neo-Bettie Page, so it sued to stop Forsythe from making any more pictures.

But Forsythe won. The court said his work was “a parody and criticism of Barbie” and that is use of the, recognizable Barbie image amounted to permissible “nominative fair use” — use of a mark that is for a purpose other than capitalizing in that mark holder’s cachet and isn’t meant to create consumer confusion. “Nominative fair use” is often relied upon by artists to want to create work that spoofs, critiques or mocks.

Now, if you look at Houff’s work, some of it suggests parody (Barbie coolly watching Ken get devoured by Christmas lights!) but some of it is just straightforward portraiture. I’ve always found it intriguing to hear artists talk about their work; I wonder if Houff would say these pictures are parodies, tributes or what. As far as I know, there is not a standard, widely accepted threshold for when a work becomes a parody, which makes sense given the subjective nature of artwork.