by Tom Forsythe
Free at last, or at least not saddled with over $2 million in battle costs. That’s how much legal tender it took before the Ninth Circuit Court of Appeals wrote a scathing opinion that called Mattel’s case against me potentially ‘unreasonable and frivolous.’ From the time Mattel sued me on August 24, 1999 up until that December 29, 2003 decision, the case always seemed unreasonable, while the difficulty was finding a way to prove that in court without going bankrupt. Not that Mattel, who uses attorneys who send mock hand grenades to potential clients with the tag line "we’ll go to war for you", would actually use that as a legal strategy…..
Well, it backfired in my precedent setting case that should give major corporations pause before they resort to lawsuits to silence their artistic critics. On June 24, 2004, the District Court echoed the Ninth Circuit in ordering Mattel to pay all legal fees and expenses. That award of $1.8 million is on top of an award of $300,000 for the cost at appeal, so Mattel is looking at writing a check for $2.1 million. Mattel’s embarrassment might just send a wake up call to censorious corporate boards everywhere. At the very least, it will make it easier for artists who do get sued to find attorneys because they’re more likely to get paid at the end of the day.
It all started when a Sheriff knocked on my door and announced "You’ve been served". Those words carry a whole different meaning than when you hear them at your favorite restaurant. On August 24, 1999 I was served with a 30 some page complaint from Mattel for copyright and trademark infringement. That was the beginning of a new menu for my ?Food Chain Barbie’ photography project.
In the face of this Federal lawsuit, I knew I had to fight back. My work is obviously ‘fair use’—political and social criticism presented with humor and parody. I wasn’t going to let a corporation known for selling an impossible beauty myth to so many generations of children get away with censoring my work. I spent the next five months in a desperate search for legal representation. I discovered that arts organizations were woefully ill equipped for the task. Various ‘lawyers for the arts’ groups are designed for simple matters—how to write a licensing agreement—but not for the daunting task of serious litigation.
A long list of attorneys suggested that I just give up, since I hadn’t made any money anyway. They were so locked into economics that they never even considered the principle. To my mind, this was an essential fight. Free speech is paramount to our free society. At the most I was risking bankruptcy, hardly a grave risk compared to the risk of life and limb taken by freedom fighters before me in this country and still today re overtly oppressive countries around the world.
I eventually persuaded the ACLU of Southern California to take up my case. They recognized that in this increasingly brand conscious world, it’s the corporations that exercise the real censorship power over free speech. Corporations make their brands ubiquitous and then complain if anyone uses the brands to criticize the resulting crass consumerism. Unlike a public figure like New York Mayor Giuliani, corporations proceed quietly, below the radar of public scrutiny, merely by making a business decision to throw their intimidating wealth in the face of hapless artists. It’s almost an Orwellian double bind that our culture is so sensitized to official censorship that the very real censorsthe truly invidious goes unnoticed and unchecked.
Even the ACLU only recently became sensitive to the power of private censorship. Lacking expertise in Intellectual Property law, they needed to find a private firm to do the lion’s share of the legal work. That’s where Howard, Rice, Nemerovsky, Canady, Falk & Rabkin come in. This San Francisco based firm has done pro bono legal work in excess of $lion in defense of my case.
From what I’ve learned in the course of defending my very basic free speech rights, this is a fairly standard cost of fighting a legal battle in federal court. It only confirms what I’ve always sensed, that the legal system is little more than a boxing ring for the rich with the common people not even invited to experience the proceedings on pay per view. We may be free to express ourselves, but if that expression involves offending a rapacious corporation, they’re equally free to sue; and unless we have the wherewithal to fight off high powered attorneys, that’s where our free speech ends.
With the rise of the internet and the aggressive branding of everything from shoes to food, intellectual property has become a hotly contested legal battleground. In a world dominated by brands, artists have to be able to comment on those brands to speak directly to the world around them.
I created the Food Chain Barbie series as a seriously funny stab at mindless consumerism, the impossible beauty myth and the advertising that brings it all into our lives.