Profiles in Gumption

Thanks to SFMOMA, Mattel wasn't able to squash a Utah artist who puts Barbie dolls in blenders

Someday, tucked amongst the acrylic paints, modeling compound, and charcoal, art supply shoppers will find bins full of Barbie dolls. The lithe plastic figurines are to sculpture, cinema, photography, and conceptual art what portland cement is to the rest of civilization. They're infinitely malleable, limitlessly versatile, and weighted with fungible meaning. If you hold Barbie's arm a couple of inches from a small flame and pull, it will permanently stretch. Painted with copper-tinted enamel, her skin resembles C-3PO's. A Spanish artist I once met used this knowledge to make spindly, alienlike, Barbie-based creatures that looked as if they'd been cast in a foundry. Barbie's movable head, arms, legs, and torso are naturals for stop-motion animation. Last week I watched Barbie and Ken star in an underground porn film set to disco music, and Barbie has starred in a movie about the life and death of Karen Carpenter. The doll was unexpectedly more convincing than a human actor might have been. Barbie's also a great photographer's model; she'll assume poses others might find too degrading or difficult. Plus, everyone knows her face. Utah artist Tom Forsythe exploited these assets in a series of photos depicting Barbie in a blender, a martini glass, a fryer, and other appliances.

"I've felt that galleries have hesitated to carry my work for fear of a lawsuit," Forsythe said when I spoke with him last week. "I hope that's gone now."

That fear -- that Barbie's parent, Mattel Corp., would sic an army of lawyers on every artist who used the doll -- had until recently kept her from a proper role in the art supply world. But that may soon change, thanks in part to the courageous, pro-free speech -- and in my view pro-artists' supply chain -- action of the San Francisco Museum of Modern Art.

Mattel has been an aggressive defender of its own intellectual property against artists in San Francisco, which has been a strong regional outpost in the world of "illegal" Barbie art. Artists here have repeatedly been forced to quit making and selling Barbie art in the face of Mattel lawsuits, which have included damage demands of more than a billion dollars. But San Francisco may be in for a Barbie art renaissance, and art stores may begin carrying bins of naked Barbie dolls, thanks to a recent freedom-of-speech court victory by SFMOMA.

According to a 9th Circuit Court of Appeals decision announced to the museum's board of trustees earlier this month, SFMOMA successfully beat back an attempt by Mattel to harass the museum with an "oppressive" subpoena, which the toy maker served in retaliation for SFMOMA allowing a curator to serve as an expert witness in the trial of Forsythe. Mattel had sued Forsythe over his aforementioned "Food Chain Barbie" photos, claiming they violated Mattel copyright. When Forsythe fought back, recruiting pro bono defense from the law firm of Howard, Rice, Nemerovski, Canady, Falk & Rabkin and the ACLU of Southern California, and obtaining expert testimony from curators at SFMOMA and the Guggenheim in New York, Mattel went overboard, asking the museums to cough up mountains of supposed evidentiary material, much of it utterly irrelevant to the Forsythe case. It was harassment, plain and simple, aimed at compelling the SFMOMA to keep its employee from providing testimony in the case.

The toy company quickly discovered it was not dealing with a pantywaist museum. For one thing, the president of SFMOMA's board of trustees is a well-connected S.F. lawyer with the firm Greene, Radovsky, Maloney & Share.

For another, Howard, Rice's main offices are just down the street from the museum. It didn't take long for the lawyers to hook up. Howard, Rice aimed serious firepower at resisting the SFMOMA subpoena, assigning this aspect of the Forsythe case to S.F. native and Yale, Cambridge, and Harvard grad Simon Frankel, who gives art law seminars at Boalt Hall, Hastings, and USF Law School.

The 9th Circuit quashed the Mattel subpoena, citing a lower court opinion that said it was served for "annoying and harassment and not really for the purpose of getting information." The appeals court also handed a complete victory to Forsythe, saying his doll photos were well within U.S. copyright law's doctrine of fair use. A lower court will now consider whether and how much Mattel should pay in attorney fees for SFMOMA's defense.

"I don't like people to be able to bully somebody," says SFMOMA Board President Richard Greene, who delivered news of the legal victory to museum trustees earlier this month. "The problem is that we live in an economic world where it's fine to stand up for a principle, but we can't do it economically. Unfortunately, there shouldn't be an economic issue tied with freedom of expression. The 9th Circuit said it best; that says it all as to what they were doing. I love being on the right side of the fence, and this time we were."

One might imagine such a pro-free speech stance to come naturally to world-class art museums. It apparently doesn't. The Guggenheim Museum found itself in exactly the same situation as SFMOMA when Mattel also subpoenaed that institution in connection with a curator who had given expert testimony in the Forsythe case. A New York attorney working on behalf of Forsythe's lawyers offered to represent the Guggenheim, for free, to fight the subpoena.

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