The Ninth Circuit yesterday upheld as "fair use" a series of photographs called "Food Chain Barbie," which "depicted Barbie in absurd and often sexualized positions." These included "Malted Barbie" -- a nude Barbie in an old Hamilton Beach malt machine. For "Fondue Barbie" and "Barbie Enchiladas," use your imagination, or read the opinion.

I'm a big proponent of property rights, including IP rights, but the world definitely needs more parody, especially in this era of grim PC police of all persuasions, and the court got this one right. If you are lucky enough and good enough to create a product that turns into a cultural icon (and everyone knows what "Barbie" means without any explanation), then it should be fair game for all kinds of riffs. Thus I loved it when Ralph Nader took off on the MasterCard "Priceless" slogan in a campaign ad, and the decision against the Cat-in-the-Hat parody of the O. J. Simpson trial has always seemed unfortunate, even though probably correct under existing doctrine.

Furthermore, sensible law of fair use is vital to the long term health and acceptability of intellectual property as an institution. As the Napster experience has shown, it is exceedingly unwise to get into a position where the public feels that IP rights are either too complicated or too restrictive.

So maybe the next in the series should be "Ninth Circuit Barbie," decorously robed, of course.

posted by James DeLong @ 12:23 PM | Access: Commons, Fair Use, Orphan Works, Public Domain

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