"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.
But the Guggenheim backed down, the curator did not testify, and Mattel withdrew the subpoena.
"At the time, the phrase I heard was something like, 'We don't wish to deal with it,'" Frankel recalls.
Guggenheim house counsel Brendan Connell applies a more lawyerly spin.
"It wasn't that we didn't fight the subpoena," Connell says. "It was that we worked out an agreement with counsel for both the plaintiff and the defendant."
That would be attorneyese for "pantywaist."
While the lawyers finagled and bickered, artsy types involved in the case maintained there were serious philosophical issues involved in allowing Barbie to express her inner nature as artist's material.
Douglas Nickel has since left his job as SFMOMA photography curator to direct the Center for Creative Photography in Tucson. But he recalls the Forsythe case well.
"Forsythe was making these photographs of Barbie dolls and blenders, so the two areas where I could speak was there was an established tradition in photography that went back to figures such as Man Ray, who likewise used dolls to satiric ends. Secondly, within the larger history of modern art, there was a tradition of artists, Andy Warhol being the most prominent, where a popular figure's face was used to critique popular culture," Nickel says. "The case was really about First Amendment rights, about any artist's freedom of speech, and the ability to make critical comments about the culture in which they live."
Forsythe, whose work was displayed at SFMOMA's "Illegal Art" show at Fort Mason last year, says he believes the San Francisco museum's stance against Mattel will cause corporations to reconsider using a scorched-earth strategy in defending intellectual property.
"I'm just really pleased that SFMOMA stood by Dr. Nickel, because if an institution like that would allow itself to be intimidated, the chances of exercising free speech become less and less," Forsythe says. "I was pretty disappointed that an institution like the Guggenheim would not stand by their curator when it was clear that it was protected, when so many people were spending time and money fighting for these free speech rights. I would have thought that the Guggenheim would have had more backbone. I think it says that people on the left coast have more sense of our rights than in the staid halls of culture in New York."
The left coast had also been at the vanguard of Barbie art, until Mattel stepped in. Seven years ago the wonderful gallery/ tavern/event space 111 Minna gathered the incipient S.F. Barbie art scene into a single show called "Plastic Love," described in publicity materials as a "Group Show of Alternative 12-inch Generic Dolls."
The star of the show, Paul Hansen, had entered the Barbie art world after dressing dolls as likenesses of his friends and giving them out at Christmas. Friends urged him to show Drag Queen Barbie, Trailer Trash Barbie, Exorcist Barbie, and other such edgy Barbies as art. Hansen sold 150 of the dolls, according to an ACLU press release. And a movement was born. It swiftly died when Mattel sued for copyright infringement, demanding -- get this -- $1.2 billion. After some legal wrangling, Hansen settled, vowing never to sell another doll.
Being a true denizen of the art world, 111 Minna owner Eiming Jung seems to have chalked the experience up to performance art.
"I actually got subpoenaed in the '97 Barbie exhibit!!!" Jung wrote from an Internet cafe somewhere in Asia, where he was vacationing last week. "Funny aside, M's atty turned out to be best friends w/ one of my best friends sisters, so my deposition was a bit of a farce."
If the '97 111 Minna exhibit, lawsuit, and settlement began an elaborate performance piece -- what, after all, could better represent an artistic critique of corporate cultural suffocation than Mattel's serial terrorizing of artists? -- Forsythe's and SFMOMA's victories are of the same piece.
The next step is clearly Mattel's; though a court of law would never rule this, I will: The company should take its defeat as a sign it's time to join the artistic fray. As it happens, there are indications the company is moving in precisely this direction.
Mattel released a performance piece last week titled Ken and Barbie Break Up, which comments on the tenuousness of modern love, the transience of social bonds, and the potential for plastic artifacts to have feelings, too. The company issued a press release saying Ken and Barbie would separate after 43 years as a couple.
"'Barbie® and Ken® have always been an extraordinary couple with so much on- and off-screen chemistry,' said the pair's business manager, Russell Arons, Vice President Marketing, Mattel," according to the press release.
Clearly this is conceptual art. Bay Area artists should follow Mattel's lead and put doll to canvas. Possibilities abound. If the photographer Spencer Tunick can become famous by compelling hundreds of people to lie naked on the ground, imagine the fame in store for the artist who splays thousands of naked Barbies pointing outward from a bomb crater. If artists can make car bodies of, say, joined coins, as they have, what about a Datsun whose skin consists only of carbon-fiber-reinforced, interlocked Barbie dolls? If Barbie put to flame stretches, wouldn't a Barbie doll sealed airtight with Barge brand cement, submerged in boiling water, then inflated with a bicycle pump swell until she looked pregnant, fat, or otherwise interestingly deformed?
Art supply stores to the ready!