Just Above Sunset
July 4, 2004: The Barbie Dialogs - Copyright Law and Ray Bradbury's Anger













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In the January 11 issue of Just Above Sunset you will find a detailed discussion of the suit Mattel brought against Tom Forsythe.  As the New York Times reported Monday and the Los Angeles Times reported Tuesday, the suit was settled.  Mattel lost.

This summary is as good as any:

 

In a victory for individual expression over the interests of big business, Mattel's lawsuit against artist Tom Forsythe for copyright and trademark infringement has come to an end.  Mattel didn't like the way Forsythe photographed his Barbie dolls (posed nude in provocative stances next to household appliances).  Forsythe says he was making a point about "Barbie's power as beauty myth" and "crass consumerism."  Mattel, on the other hand, hoped to wield its financial might to protect Barbie's honor.

Art won -- and won big -- as a federal court, after a series of appeals, not only ruled in Forsythe's favor but concluded that Mattel's failure to recognize protected parody resulted in a frivolous lawsuit.  The court ordered Mattel to pay Forsythe more than $1.8 million in attorney's fees.

 

Ouch.

Of course the other way to look at this is now no one’s copyright or trademark or invention or creation is safe any longer and this is a dark day for protecting what you have created.

Me, I don’t care much either way.

I do see Ray Bradbury – the author of the novel/play/screenplay “Fahrenheit 451” - is going after Michael Moore about the “Fahrenheit 911” title.  He’s pissed off.  Says Moore stole his title.  Doesn’t like his title being used in political ways.  Bradbury does admit his novel “Something Wicked This Way Comes” quotes in its own title a line from Shakespeare (Macbeth, Act 1, Scene 1) but says that was sort of in public domain – or at least widely used and common speech.  Bradbury says he now will sue anyone who uses the word Fahrenheit followed by any numeric for copyright infringement and major damages.

I think I’ll register “Gone with the [any noun]” with the feds and make a lot of money.  But I think Margaret Mitchell’s estate already did that.
From a friend who actually used to handle licensing for Mattel (although I think she worked more with the Hot Wheels
line than the Barbie side of the house) – “It's actually a victory for both Forsythe and Mattel.  Barbie needs all the publicity she can get and it only cost them $1.8 million to keep her in the news.”

Her husband, CEO of a software firm, disagrees – “I actually don't think it's the result Mattel wanted. But in this case they were actually wrong, it was very clearly parody as artistic expression. This was more clear in my view than the Wind Done Gone parody and where I think it was an abuse since they were both creative novels.

Background note - this from the June 29, 2003 issue of Just above Sunset:

 

You might recall the augments over this supposed sequel to Margaret Mitchell's novel, Gone With the Wind.  The black author, Alice Randall, and the Mitchell estate fought in the courts over Randall's right to publish this pretty sardonic take on what happened at Tara after Rhett left the scene for good.  The novel, The Wind Done Gone, was finally published in late 2001.

A three-judge panel of the 11th U.S. Circuit Court of Appeals on October 10, 2001 affirmed a previous court's decision to block an injunction against publication of The Wind Done Gone.  The panel said it wasn't clear whether Alice Randall's book parodied Gone With the Wind.  But the judges said Margaret Mitchell's estate hadn't demonstrated a likelihood of success for its claims, part of the standard for an injunction.  The claims were that Randall used characters and quotes from the Mitchell book without permission and without paying royalties.  And these would never be granted because Randall was attempting to make a profit from Mitchell's creation.  They were Mitchell's characters and Mitchell's plot and Mitchell's words, not Randall's.

The panel heard less than an hour of arguments on an appeal by Boston-based publisher Houghton Mifflin before issuing its ruling from the bench.  In a brief order, the judges said the injunction was an "extraordinary and drastic remedy" that "amounts to an unlawful prior restraint in violation of the First Amendment."

So The Sun Done Gone went to press - and sank quickly because actually it wasn't very good.  A black take on Gone With the Wind should have been better, I guess.  The market provided its own injunction.

Ah, but back to Barbie and Ray!

Rick Brown, the News Guy from Atlanta – and editor of City-Directory Atlanta - added this:

 

But the good news for me is that now, after such a long wait, I can finally display that provocative pose of Barbie with Barney the Dinosaur on my website!

I think the problem with Bradbury's suit - although I would think he would know this better than I would, so I may be somehow off-base on this - is that you can't copyright book or movie titles.  If I'm right, Moore could have even used the actual words "Fahrenheit 451" and gotten away with it, although it wouldn't have made much sense.  (If I may take exception with a point I might be missing here, this whole issue could involve trademark law, rather than copyright law.)

Oddly enough, this would also mean you or I could even release a film or book named "Gone with the [any noun]" in with the "any-noun" would be "Wind"!  It's my understanding that copyright of books and movies and such comes into play in the unauthorized use of originally-created characters and situations and plots, which was the real reason the Mitchell estate people authorized a sequel (the copyrights were running out) and went after "The Wind Done Gone" parody.

Still, the Bradbury-Moore thing should be interesting to watch.

Although it's probably not legally relevant, I'm curious: Any idea of what Ray's politics are?

 

Well, no. I have no idea.  A friend in with the local sci-fi community says Ray is very pro-Bush.  Maybe so.

But I did hear an interview with Bradbury regarding all this - by telephone with MSNBC.  Bardbury says he doesn't want any money from Moore.  He wants his title back, whatever that means.  He was unclear.  He's getting on.  He was born August 22, 1920 so he's eighty-four - and he has pretty much settled into the role of "The Grumpy Old Sage of Long Beach."  He's a local legend.  He doesn't have to make sense.  That's his new privileged status.

Anyway, he said he's really, really miffed that Moore didn't call him to ask permission or even discuss the matter when Moore was making the film.  And Moore only returned one of his many telephone calls since.  (I'm sure when Ray as writing "Something Wicked This Way Comes" he would have put in a call to William Shakespeare and asked for his permission to use those words in the title - if he could.  But obviously....)

Ray Bradbury wants his title back.  Just how would that work?  And yes, I do understand you cannot copyright a title.  Very odd.

Bradbury also said his book "Fahrenheit 451" was NOT political at all - he said that book was sociological and aesthetic.  He didn't speak to his own politics.  Says he hasn't seen Moore's film - Moore didn't offer to show it to him.  And he's not going to buy his own ticket.

But what can one assume about his politics from his books?  I just glanced through "Dandelion Wine" - a book my younger students back in the seventies rather liked.  Small town America - summer and adventures in the neighborhood, odd but compelling domestic conflicts.  Assume the politics of nostalgia - Harding in the White House and life-changing adventures just outside your front door in the friendly sunshine.

Rick Brown, the News Guy from Atlanta, commented on that hypothetical telephone call from Long Beach to some tomb in Stratford-Upon-Avon – Ray asking Will for permission to use the words of The Bard in a novel about spooky things in small town America.  Did Ray make the call?  The old coot probably did, and I imagine is annoyed to this day that the Bard never returned any of his calls!

Curiously, another friend in on all this, who used to work out here in “the industry” (the movie business), clarified some matters regarding titles.  Of course Joseph now lives in France, but he used to live out here in Beverly Hills and he really does know this stuff – and he likes my idea of registering “Gone with the [any noun]” for my very own –

 

You are absolutely right, which is why movie titles are reserved through and use arbitrated by the AMPAS.  If your production company or distributor has signed that all-important contract with the academy, you are obliged to abide by their title control system.  There are disputes all the time; effectively a film must be in public domain before the title is cleared unless it is completely generic.  That said, they will let you slide if the previously released film whose title you are using is deemed to have no current market value, or if Major Bucks is behind you.  All rather subjective and behind closed doors.

 

The game is rigged?  Here in Hollywood?  No.  Really? 

 

I need to meet this Major Bucks fellow.

As for Barbie dolls being used in obscene parodies getting Mattel all wrapped around it own axle, Joseph wonders whether all that wasn’t settled in the “Big Bird” case between PBS and the University of Colorado back in the early '90s.  He asks if any of us remember the painting of Bert and Ernie doing the missionary while Big Bird watches through the window.

Nope.  Missed that.

But his main point is that titles can be protected. 

 

Is 911 too closed to 451 on the Fahrenheit scale?  The difference is 460 degrees.  Are they really different titles?

A tale from Phillip Raines, who writes of a treehouse and music in
Just Above Sunset (links on the left side of the home page) -

 

Steven Spielberg tried to sue our natural science museum (Fernbank - county funded) for advertising a "Jurassic Extravaganza."  It was immediately dismissed.

A quote I recall regarding the issue was "That Spielberg thinks that he has any claim to a name for a geological period of history is the height of arrogant vanity..." or something to that effect (I'm relying on a beleaguered memory).  This seems to be the case with Bradbury.

What right does he have to a word that indicates a method of temperature calculation (which was actually some ones last name) followed by any number?  Gee, Ray, unbutton a button or something.  You're taking yourself way to seriously.  Not all of his books were that great anyway.  E-gads is this what we have to look forward to as we age, to become more conceited and grouchy as we fossilize?  He might as well have released a press statement that said - "I'm no longer productive, I ache and I'm losing my mind, which makes me pissed off."

Maybe he's surrounding himself with people who suck up to him all the time.  It scrubs off a few layers of respect for him in my book.

 

Maybe so.

And it is all very odd.

Perhaps an animated version of “Gone With The Wind” – a pixilated puppet thing with unauthorized Barbie dolls in all the female parts and unauthorized Ken dolls in the male roles (Rhett Butler and the others) – would be cool.  (Barbie though has dumped Ken and her new beau is Blair, an Australian surfer-dude, to be introduced next month.)  And we’ll call it “Fahrenheit 460 - Jurassic Tara Burns to the Ground.”  Everyone can sue everyone else.

Well, frankly my dear, I don’t give damn. 

 

There.  I said it.  So sue me.































 
 
 
 

Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
 
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