› Aqua Versus Barbie: The Day “Speech-Zilla” Demolished “Trademark Kong”

Aqua Versus Barbie: The Day “Speech-Zilla” Demolished “Trademark Kong”

Lame DogPop

Twenty years ago this month, a lawsuit was filed that resulted in a significant ruling on First Amendment protection for satire, a subject close to the Dog’s heart. The defendants included MCA Records, a music distributor.  And the plaintiff was Mattel, the maker of what is probably the world’s most famous (and infamous) doll:  the Barbie.

 A few weeks earlier, the Danish eurodance band Aqua had released a single entitled “Barbie Girl.”  Almost immediately, it charted at Number 7 in the United States, the fastest rise ever for a new group according to Billboard.  In other countries, including Australia, Germany, Spain, and the United Kingdom, it reached number one.  Not everyone was pleased; years later, a poll by Rolling Stone Magazine rated it the 11th most annoying song of all time.  But no one was more dismayed than Mattel, which complained that the “adult-oriented lyrics” detracted from their product’s “wholesome image.”
 
Take a look at the famous Aqua video, which has been viewed over 400 million times.  And keep an eye on what happens to “Barbie” after two minutes and forty seconds:
 

Mattel’s lawsuit was filed in a federal district court in California and assigned to Judge William Matthew Byrne, Jr., who is best remembered for his decision dismissing charges against Daniel Ellsberg in the Pentagon Papers case based on governmental misconduct.  In essence, Mattel alleged that the song had infringed its trademark and confused the public concerning its brand.  To support its argument, it hired an expert to

 

 

conduct interviews in shopping malls in six different states. (Of the 556 persons contacted, 4% were sufficiently clueless as to believe that “Mattel” or “Barbie” had put out the video.)  They also conducted 1009 telephone surveys, gathering such fascinating statistics as that 52% of 5 to 10 year old girls liked the song “a lot.”  Despite these efforts, Judge Byrne granted MCA’s motion for summary judgment, dismissing the case before trial.  In doing so, he emphasized that the song warranted First Amendment protection as “a parody both of the doll itself” and “the shallow plastic values she has come to represent in some circles.”
 
Mattel appealed to the Ninth Circuit but fared no better.  In his 2002 opinion for the Court, Judge Alex Kosinski began by observing that if “this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.”  After citing a book billed as an unauthorized biography of Barbie for the observation that the original version of the doll resembled a “German street walker,” he proceeded to refute Mattel’s legal arguments.  He also affirmed the dismissal of a (rather silly) defamation suit that MCA had raised as a counter-claim against Mattel.  The opinion concluded with the memorable sentence:  “The parties are advised to chill.”
 
Mattel asked the United States Supreme Court to hear the case but they declined.  Legally, that was the end of the road, but not the end of the story.  What happened next exemplifies the old saying, “If you can’t beat ’em, join ’em.”  In 2009, Mattel began an advertising campaign using the Barbie Girl song to sell its dolls, albeit with revised lyrics.  Seeing is believing:

 

 The moral of the story, I suppose, is that under capitalism everything is ultimately secondary to the profit motive.  Or as Stephanie Cota, Mattel’s senior vice president for marketing the doll, put it to a reporter for the New York Times, “The beauty of Barbie is that she gets to kiss and make up.”