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Gary Younge
Mattel loses court battle to defend Barbie's honour

In a ruling that ended five years of legal wrangling the judge, Ronald Lew, ordered toymaker Mattel to pay $1.8m (£1m) in legal costs after he threw out a copyright infringement suit filed by the company against a photographer who posed Barbie dolls naked in suggestive positions in or around household appliances.

"I thought the pictures needed something that really said 'crass consumerism', and to me that's Barbie," Tom Forsythe, an artist and photographer, told the New York Times. "The doll is issued in every possible role you can imagine and comes with every possible accessory for each and every role."

Mr Forsythe exhibited his pictures in Utah and Kansas City under the theme "Barbie's power as a beauty myth" and sold several thousand.

When Mattel found out it sued him for copyright and trademark infringement in 1999.

It is not the first time Mattel has moved in to protect Barbie's honour. In the same year that it started pursuing Mr Forsythe it also slapped Seal Press with a suit over a book called Adios Barbie. Seal agreed to remove the doll's name from the title and images of its clothing and accessories from the cover.

In 2002 Mattel unsuccessfully appealed against a court ruling upholding MCA record label's 1997 release of the song Barbie Girl, which Mattel had argued was a violation of its trademark and defamatory because of its sexual innuendo.

In a written order Judge Lew effectively accused the plaintiff, Mattel, of trying to bully Mr Forsythe into backing down. "[The] Plaintiff had access to sophisticated counsel who could have determined that such a suit was objectively unreasonable and frivolous," he wrote. "Instead it appears [the] plaintiff forced [the] 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."

Mr Forsythe had struggled to find a legal team to defend him until the American Civil Liberties Union, a civil rights group, stepped in.

"I couldn't have asked for a better result," said Mr Forsythe, 46, of Kanab, Utah. "This should set a new standard for the ability to critique brands that are pervasive in our culture."

Jonathan Zittrain, a Harvard law professor, told the New York Times. "Maybe now when an angry CEO picks up the phone and says 'sue this guy' the lawyer may say 'I have to warn you, this could boomerang'."

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