Barbie is, of course, an American icon known to virtually every man, woman and child in the United States. Even if you are a man (and played with G.I. Joe as a boy), your sisters played with Barbies, or your cousins did, or the girls down the street had tea parties with Barbie in the back yard. Even if you have not seen an actual Barbie doll since you were a child, simply by virtue of living in our culture you have been exposed to the concept of Barbie. Think about it. If you have seen a movie in the last six months you will have seen the trailer for Toy Story 3, which dramatically stars Barbie and Ken as heroine and hero, respectively — although Ken may be a villain. It’s difficult to tell given his penchant for ascots, which are mainly associated with wealthy layabouts and decadent aristos.
Putting Ken aside, Barbie is a cultural icon, and she looms large in the American imagination. If you have daughters under the age of ten, you will invariably have been subjected to Barbie-mania at your local Toys ‘R’ Us, where your options include not just Handicapped Barbie or Bilingual Spanish Teacher Barbie, but Hard Rock Café Barbie, Star Trek Barbie, Harley Davidson Barbie (Ken has a ponytail and wears leathers), and Top Model Barbie, to name a few. Having not entered a Toys ‘R’ Us since approximately 1976 myself, I was astounded to find some 50 different Barbies on display, including ceremonial Barbies eerily reminiscent of the porcelain dolls collected by childless spinsters.
Recently, of course, Barbie made headlines with her huge trademark infringement victory over the Bratz dolls franchise, which shut down the Bratz and garnered a cool extra $100 million for Barbie after the jury decided the Bratz were bastard offspring created by Carter Bryant when he worked for Mattel. Though this is a far cry from the $1.8 billion sought by Barbie, you have to conclude that big sister won this round.
Litigation hasn’t always gone Barbie’s way, however. As is the case with many a top model, controversy is a staple of Barbie’s diet, and sometimes the results are hard to swallow. You may recall the humorous prank in 1993 when a group calling itself the “Barbie Liberation Organization” modified Barbie dolls by giving them the voice box of a talking G.I. Joe doll, and secretly returned the dolls to the shelves of toy stores. Parents and children were surprised when they purchased Barbie dolls that uttered phrases such as “Eat lead, Cobra!” and “Vengeance is mine!” That vexed Barbie, and preyed on her mind for years, so when the Danish-Norwegian pop-dance group Aqua released a song called “Barbie Girl” in 1997 which contained lyrics such as “You can brush my hair / Undress me everywhere” and made other obvious references to Barbie, Barbie threw a hissy fit and sued MCA Records for trademark infringement and – if you can believe it – defamation. The case wended its way through federal court until finally, in 2002, Judge Alex Kozinski ruled that the song was protected as a parody under the First Amendment, and famously advised the parties to “chill.” This was a rough period in Barbie’s life, where the world seemed to turn its fickle back on her as it does so often with celebrity favorites – see, e.g., Britney, Lindsay – and every time Barbie took steps to protect her image it seemed as if she got slapped down by the legal system and ridiculed by the media. While “Barbie Girl” was being blasted through the airwaves on what seemed like the radio of every car in America, a Utah artist named Forsythe had the audacity to publish unflattering photos of Barbie.
Barbie’s lawyers got aggressive with Forsythe – who claimed that Barbie was the symbol of everything that was wrong with our consumer society – but the embattled star again lost in federal court and was ordered to pay Forsythe $1.8 million.
The late 90s and early years of the new century saw Barbie’s market share erode, her influence on pre-teens fade, and she appeared on her way to a senescence heralded by her long-overdue breakup with Ken. With the Bratz victory breathing life back into Barbie’s career, however, she has little need to concern herself with either the competition or the sound and fury of the artistic community. Barbie is once again firmly ensconced in her role as Queen of the Dolls, and can magnanimously ignore backhanded compliments such as the 2011 Altered Barbie competition, where artists vie to show Barbie in all her multifaceted glory.
These days, such things are simply beneath her notice.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.