Case Study: Barbie

Mark Napier is a digital artist who gathers graphic images found on the Internet and distorts them until they represent new, independent creations. His own digital gallery displays a series of digitally manipulated images, as well as fixed and animated collages. Napier has received an award for website deign, and describes his art as “woven... images of the body, religious icons, pop culture and the computer interface itself.”

In 1996, Napier created “The Distorted Barbie,” a web-art installation that displayed digitally altered images of Barbie dolls in order to comment on Barbie as a cultural/commercial symbol and pop-icon. He published his original Distorted Barbie both on his own site at Interport and in the e-zine Enterzone. Napier admirers describe the piece as “a web-based exploration in words and images of the impact Barbie and all her baggage have had on our bodies and culture. The site is a poetic and potent piece of Internet art.”

Mattel’s Rights to Control Barbie’s Likeness
After discovering the site, Mattel sent strongly-worded cease-and-desist letters both to Enterzone and to Interport, Napier’s Internet service provider. Why did Mattel send the letter to Interport instead of Napier himself? Should Mattel have any legal claims against Napier? Enterzone? Interport?

The Problem of Enforcement
Interport, not wanting to become embroiled in a law suit, asked Napier to comply.  Napier considered moving to another ISP, but was worried that changing addresses would diminish traffic to his site. Instead, he complied with Mattel's legal demands by replacing his old Distorted Barbie with a new version of the image, so altered that it is barely recognizable as Barbie. To answer Mattel's request that he stop using the trademark "Barbie," he changed the name of the new image to Distorted $arbie. Do these changes clear Interport of any possible infringement charges? If not, would Napier's moving the Distorted Barbie to another ISP protect Interport? What would be the implications for Napier's next ISP? Should Napier be concerned about his own liability?

Meanwhile, Christian Crumlish, the editor of Enterzone, followed the progress of the Napier controversy. For a time, he published a nearly day-to-day account of the issue at a site called “The Daily Barbie.” It connected readers to a site which invited people to join the rebellion by creating a “meme” of Distorted Barbie -- that is, mirroring the site faster than legal teams can ask that it be torn down. The Daily Barbie and the original rebellion site are no longer available, and it is not clear who began the meme. However, the meme still survives and is available at another location.. Could a mirroring scheme like this thwart any attempt at enforcement of claims by Mattel? How can copyright law be enforced in a medium as vast and uncontrolled as the Internet?

Fair Use
The creators of the meme argue that Barbie is an essential thread in the fabric of American (and, indeed, global) culture, and therefore should be available for use in public dialogue.  Because the doll’s likeness is the easiest and only way of expressing the abstract concept of “Barbie,” they feel that people should be able to express cultural criticism using the likeness, regardless of Mattel’s copyright ownership. Indeed, under the “fair use” doctrine of copyright law, parodies which incorporate part of a copyrighted work in order to criticize or comment upon that work are protected. Napier’s Distorted Barbie site includes several essays about symbology and the social implications of Barbie. Is Napier’s manipulation of Barbie “fair use?” What if the Distorted Barbie wasn’t accompanied by such social commentary? Are those who simply mirror the site, rather than commenting on the social implications of Barbie, engaging in “fair use?”?

Criticism v. Endorsement
To what extent does Napier’s site differ from fan-’zines and other sites celebrating Barbie, such as “The Dolls, The Dish & the Dollars?” Do these sites compete with or complement Mattel’s own Barbie site? Should Internet ’zines (and their ISPs) be treated like physical magazines and their publishers, for liability purposes?

Napier’s Rights to Control the Distorted Barbie
Napier has developed a sizable following among digital art fans. Some admirers reproduce his work on their own websites. Should Napier be able to enjoin others from displaying his artwork by mirroring or linking to his site? Does it make a difference whether his piece is entirely original, or a distorted version of a copyrighted cultural icon? Napier has taken down the original Distorted Barbie, and has launched a new Distorted Barbie. The new version is a far more warped, less identifiable image of the doll. Does it matter how similar the distorted image is to the copyrighted image? Should Napier have greater rights overthe new Distorted Barbie than the old one?

Publicity Rights
Imagine that George, one of Napier's fans, realizes how popular Napier has become, and launches his own website called "The Mark Napier Gallery."  Unlike Napier's own gallery, this website does not actually contain work created by Mark Napier; rather, it contains digitally manipulated images that closely resemble Napier's work, but which were actually created by George himself. George starts charging other Napier fans for access to his on-line gallery. (Napier's own gallery is available for free.) Can Napier sue George for his profits? Can he sue to make George stop using his name? Does it matter whether George's customers know George made the designs himself or think that they are genuine Napier images? Can an on-line personality like Napier have publicity rights?

Moral Rights
Moral rights allow the creator of a work of visual art to retain autonomy over that creation. Indeed, the artists who design Barbie dolls invest a great deal of personal effort and artistic talent into each doll. Would Mattel be able to claim that its “moral rights” have been violated by Napier or by those who maintain Barbie collectors' sites? Do fan-’zines always run the risk of violating moral rights? (See Gary Larson mini-case-study.) What are Napier's “moral rights” to the artistic work he has produced? In assessing moral rights, does it matter that the original artists are paid by Mattel, or that Napier reaps no financial gains from his work?

In the United States, moral rights are governed by the 1990 Visual Artists' Rights Act, which explicitly denies moral rights protection to all forms of electronic publishing (like Napier's images), and to works of visual art produced in quantities of more than 200 (like Barbie dolls). Why would Congress categorically deny moral rights protection to electronic publishing? Is a "copy" made every time someone downloads an image, thus violating the 200-copy maximum? Or is the image simply being "time-transferred" and viewed, like a movie on a VCR? (See Sony v. Universal.)

For more information on the issues raised in this case study, go to the list of legal resources compiled for this subject.

Additional case studies:
Gary Larson’s Cartoons
Star Trek Fan Fiction
On-Line Book Publishing (incomplete)