Some highlights from Mattel, Inc. v. MCA Records (2002)
From Judge Kozinski, Ninth Circuit Court of Appeals:
With fame often comes unwanted attention. Aqua is a Danish band that has, as yet, only dreamed of attaining Barbie-like status. In 1997, Aqua produced the song Barbie Girl on the album Aquarium. In the song, one bandmember impersonates Barbie, singing in a high-pitched, doll-like voice; another bandmember, calling himself Ken, entices Barbie to “go party.” (The lyrics are in the Appendix.) Barbie Girl singles sold well and, to Mattel's dismay, the song made it onto Top 40 music charts.
The Barbie Girl title presages a song about Barbie, or at least a girl like Barbie. The title conveys a message to consumers about what they can expect to discover in the song itself; it's a quick glimpse of Aqua's take on their own song. The lyrics confirm this: The female singer, who calls herself Barbie, is “a Barbie girl, in [her] Barbie world.” She tells her male counterpart (named Ken), “Life in plastic, it's fantastic. You can brush my hair, undress me everywhere/Imagination, life is your creation.” And off they go to “party.” The song pokes fun at Barbie and the values that Aqua contends she represents. The female singer explains, “I'm a blond bimbo girl, in a fantasy world/Dress me up, make it tight, I'm your dolly.”
The song does not rely on the Barbie mark to poke fun at another subject but targets Barbie herself. This case is therefore distinguishable from Dr. Seuss, where we held that the book The Cat NOT in the Hat! borrowed Dr. Seuss's trademarks and lyrics to get attention rather than to mock The Cat in the Hat! The defendant's use of the Dr. Seuss trademarks and copyrighted works had “no critical bearing on the substance or style of” The Cat in the Hat!, and therefore could not claim First Amendment protection. Dr. Seuss recognized that, where an artistic work targets the original and does not merely borrow another's property to get attention, First Amendment interests weigh more heavily in the balance.
After Mattel filed suit, Mattel and MCA employees traded barbs in the press. When an MCA spokeswoman noted that each album included a disclaimer saying that Barbie Girl was a “social commentary [that was] not created or approved by the makers of the doll,” a Mattel representative responded by saying, “That's unacceptable.... It's akin to a bank robber handing a note of apology to a teller during a heist. [It n]either diminishes the severity of the crime, nor does it make it legal.” He later characterized the song as a “theft” of “another company's property.”
MCA filed a counterclaim for defamation based on the Mattel representative's use of the words “bank robber,” “heist,” “crime” and “theft.” But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.” No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable “rhetorical hyperbole,” Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir.1999). The parties are advised to chill.
With fame often comes unwanted attention. Aqua is a Danish band that has, as yet, only dreamed of attaining Barbie-like status. In 1997, Aqua produced the song Barbie Girl on the album Aquarium. In the song, one bandmember impersonates Barbie, singing in a high-pitched, doll-like voice; another bandmember, calling himself Ken, entices Barbie to “go party.” (The lyrics are in the Appendix.) Barbie Girl singles sold well and, to Mattel's dismay, the song made it onto Top 40 music charts.
The Barbie Girl title presages a song about Barbie, or at least a girl like Barbie. The title conveys a message to consumers about what they can expect to discover in the song itself; it's a quick glimpse of Aqua's take on their own song. The lyrics confirm this: The female singer, who calls herself Barbie, is “a Barbie girl, in [her] Barbie world.” She tells her male counterpart (named Ken), “Life in plastic, it's fantastic. You can brush my hair, undress me everywhere/Imagination, life is your creation.” And off they go to “party.” The song pokes fun at Barbie and the values that Aqua contends she represents. The female singer explains, “I'm a blond bimbo girl, in a fantasy world/Dress me up, make it tight, I'm your dolly.”
The song does not rely on the Barbie mark to poke fun at another subject but targets Barbie herself. This case is therefore distinguishable from Dr. Seuss, where we held that the book The Cat NOT in the Hat! borrowed Dr. Seuss's trademarks and lyrics to get attention rather than to mock The Cat in the Hat! The defendant's use of the Dr. Seuss trademarks and copyrighted works had “no critical bearing on the substance or style of” The Cat in the Hat!, and therefore could not claim First Amendment protection. Dr. Seuss recognized that, where an artistic work targets the original and does not merely borrow another's property to get attention, First Amendment interests weigh more heavily in the balance.
After Mattel filed suit, Mattel and MCA employees traded barbs in the press. When an MCA spokeswoman noted that each album included a disclaimer saying that Barbie Girl was a “social commentary [that was] not created or approved by the makers of the doll,” a Mattel representative responded by saying, “That's unacceptable.... It's akin to a bank robber handing a note of apology to a teller during a heist. [It n]either diminishes the severity of the crime, nor does it make it legal.” He later characterized the song as a “theft” of “another company's property.”
MCA filed a counterclaim for defamation based on the Mattel representative's use of the words “bank robber,” “heist,” “crime” and “theft.” But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.” No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable “rhetorical hyperbole,” Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir.1999). The parties are advised to chill.