Monday, April 19, 2010

Who's That Barbie Girl?

Barbie is, of course, an American icon known to virtually every man, woman and child in the United States. Even if you are a man (and played with G.I. Joe as a boy), your sisters played with Barbies, or your cousins did, or the girls down the street had tea parties with Barbie in the back yard. Even if you have not seen an actual Barbie doll since you were a child, simply by virtue of living in our culture you have been exposed to the concept of Barbie. Think about it. If you have seen a movie in the last six months you will have seen the trailer for Toy Story 3, which dramatically stars Barbie and Ken as heroine and hero, respectively — although Ken may be a villain. It’s difficult to tell given his penchant for ascots, which are mainly associated with wealthy layabouts and decadent aristos.

Putting Ken aside, Barbie is a cultural icon, and she looms large in the American imagination. If you have daughters under the age of ten, you will invariably have been subjected to Barbie-mania at your local Toys ‘R’ Us, where your options include not just Handicapped Barbie or Bilingual Spanish Teacher Barbie, but Hard Rock CafĂ© Barbie, Star Trek Barbie, Harley Davidson Barbie (Ken has a ponytail and wears leathers), and Top Model Barbie, to name a few. Having not entered a Toys ‘R’ Us since approximately 1976 myself, I was astounded to find some 50 different Barbies on display, including ceremonial Barbies eerily reminiscent of the porcelain dolls collected by childless spinsters.

Recently, of course, Barbie made headlines with her huge trademark infringement victory over the Bratz dolls franchise, which shut down the Bratz and garnered a cool extra $100 million for Barbie after the jury decided the Bratz were bastard offspring created by Carter Bryant when he worked for Mattel. Though this is a far cry from the $1.8 billion sought by Barbie, you have to conclude that big sister won this round.

Litigation hasn’t always gone Barbie’s way, however. As is the case with many a top model, controversy is a staple of Barbie’s diet, and sometimes the results are hard to swallow. You may recall the humorous prank in 1993 when a group calling itself the “Barbie Liberation Organization” modified Barbie dolls by giving them the voice box of a talking G.I. Joe doll, and secretly returned the dolls to the shelves of toy stores. Parents and children were surprised when they purchased Barbie dolls that uttered phrases such as “Eat lead, Cobra!” and “Vengeance is mine!” That vexed Barbie, and preyed on her mind for years, so when the Danish-Norwegian pop-dance group Aqua released a song called “Barbie Girl” in 1997 which contained lyrics such as “You can brush my hair / Undress me everywhere” and made other obvious references to Barbie, Barbie threw a hissy fit and sued MCA Records for trademark infringement and – if you can believe it – defamation. The case wended its way through federal court until finally, in 2002, Judge Alex Kozinski ruled that the song was protected as a parody under the First Amendment, and famously advised the parties to “chill.” This was a rough period in Barbie’s life, where the world seemed to turn its fickle back on her as it does so often with celebrity favorites – see, e.g., Britney, Lindsay – and every time Barbie took steps to protect her image it seemed as if she got slapped down by the legal system and ridiculed by the media. While “Barbie Girl” was being blasted through the airwaves on what seemed like the radio of every car in America, a Utah artist named Forsythe had the audacity to publish unflattering photos of Barbie.

Barbie’s lawyers got aggressive with Forsythe – who claimed that Barbie was the symbol of everything that was wrong with our consumer society – but the embattled star again lost in federal court and was ordered to pay Forsythe $1.8 million.

The late 90s and early years of the new century saw Barbie’s market share erode, her influence on pre-teens fade, and she appeared on her way to a senescence heralded by her long-overdue breakup with Ken. With the Bratz victory breathing life back into Barbie’s career, however, she has little need to concern herself with either the competition or the sound and fury of the artistic community. Barbie is once again firmly ensconced in her role as Queen of the Dolls, and can magnanimously ignore backhanded compliments such as the 2011 Altered Barbie competition, where artists vie to show Barbie in all her multifaceted glory.

These days, such things are simply beneath her notice.

Wednesday, April 7, 2010

A few years ago Julian Dibbell wrote a book called Play Money — Or, How I Quit My Day Job And Made Millions Trading Virtual Loot, which detailed the year he spent trying to win a bet with himself. The bet: that he could make more money by killing trolls and demons (or making armor) in Ultima Online than he ever had as a writer. Quirky concept, I agree, but the more you look into it the more interesting the idea gets, especially when you realize that the gold pieces used as currency by Ultima Online and other massively multiplayer online games (e.g., World of Warcraft, Eve Online or Lord of the Rings Online) are actually traded online in the same way that say, Brazil’s currency (the real) is. And many of the currencies from virtual worlds are more stable than those circulated by certain South American regimes.

There are a number of legal issues from virtual worlds that have superficial interest or — perhaps better stated — create the equivalent of cocktail party chatter for the intellectual property crowd. For example, in many online worlds you may chose to be an honorable member of the Thieves Guild, in which case it is perfectly acceptable for you to wander the world breaking into houses and stealing jewels and gold and artifacts — you’re a thief, after all, so it’s basically your job to act in this fashion — whereupon you can trade these items for something else in virtual reality (e.g., food, weapons, a horse, a house, etc.), or if you managed to get your hands on something truly exceptional you can simply list it on eBay and sell it for real dollars. So you’re stealing from people in virtual reality, fencing the goods on eBay, and pocketing the cash in your PayPal account, all tax free, since the IRS has no idea how to value what you’re doing. And did I mention it’s all perfectly legal?

Apart from the idea of a currency exchange (which makes sense when you realize that more than 10,000,000 people play World of Warcraft regularly, and many other MMOGs have over a million subscribers), these online worlds are rapidly changing the way intellectual property law works. Intellectual property, of course, deals with intangible assets, and thus dovetails perfectly with the concept of intangible worlds. Recently, though, the questions asked have been real brain twisters. For example, who owns the rights to your avatar — the “you” you created – in the online world? What if you upload a real photograph of yourself to the game server and the character you are playing actually bears your face — which you can actually do in Tiger Woods PGA Tour 10? What if the user agreement you signed (by clicking “I agree” when you logged on for the first time) says that all intellectual property in the game, including anything you create while using the game, remains the property of the corporation that owns the game? Who owns your avatar now? Most people never even read the user agreement, of course, but does the fact that it’s mandatory that you agree in order to play the game mean that it’s a contract of adhesion and can be voided, or does it mean you foolishly gave up your intellectual property rights in exchange for the privilege of being a half-elf ranger wandering the forests of Elfheim during the 22 hours a week you play the game?

If this sounds too theoretical, note that last year Taser International sued Second Life for trademark infringement because characters were using, and selling, virtual replicas of tasers in the game. Sounds silly, doesn’t it, until you find out that people pay $100 million to Linden Labs every year to buy Linden dollars so that they can clothe and feed their avatars in Second Life, and that the virtual reality gray market generates about $6 billion in revenue annually. And then someone tells you that Ben Folds Five actually did a live concert in Second Life (and you couldn’t hear it unless your avatar bought a ticket and attended), and Judge Richard Posner of the Seventh Circuit Court of Appeals has given lectures in Second Life, and Coke, Pepsi, Gap, Versace, Porsche, McDonald’s and all the other corporate sponsors are sniffing around figuring out how to protect and capitalize on their trademarks in these realms. Somehow, the more you look at it, the less silly it seems. Where real money stands to be made by playing with Monopoly money, the law perks up its ears and starts paying attention.

Tattoo You

For the last year I’ve been randomly assaulted by tattoos. One day I’m walking to my favorite San Francisco coffee shop — Cafe Amici — and I bump into a group of teenagers. I look up and one of the boys is shaking a little tin cup and has a tattoo of a pink hippopotamus on his forehead. Not a sticker, not a temporary tattoo, but indelible ink on his forehead. A hippo.
Fast forward several months, I’m in line for an espresso at the same shop, and right in front of me is a guy with tiger stripes tattooed on his neck and face, and presumably on the rest of his body. He looks cool, but I hope for his sake he’s famous. Or at least rich.
Then, yesterday, a friend sends me a joke email entitled Why Can’t I Get a Job? that shows a host of 20-somethings with prominent facial piercings and tattoos, as well as — in a few cases — a cosmetic alteration designed to make the bearer look as though he starred in Hellboy and has little demon horns bursting from his skull. Funny, weird, a statement I’m not particularly sure I’m capable of understanding.
Finally, today I pass a kiosk that has a picture of movie star Megan Fox in lingerie, advertising something or other, and prominently displayed on her right forearm is her famous tattoo of Marilyn Monroe. Believe it or not, one of my first thoughts was “I wonder if Marilyn’s estate has publicity rights in the tattoo on her arm?” And then my mind spun down the twisted legal path of wondering if an argument could be made that Megan Fox is unfairly trading off of Monroe’s goodwill by permanently associating herself with Monroe — i.e., by virtue of having tattooed the iconic symbol onto her flesh. If someone did that with another trademark — say, the McDonald’s arches — would McDonald’s have a viable trademark infringement case against them? What if the individual prominently flaunted the tattoo in photo spreads across the world in a way that was clearly commercial (e.g., in advertisements) or in a way that perhaps disparaged the sainted patriarch of fast food? One can imagine a porn star with a Ronald McDonald’s tattoo named Ranni Macdonald that might cause offense in the same way that Mariah Carey was offended by porn-star-turned-politician Mary Carey’s attempt to trademark her stage name (which Mariah ill-advisedly opposed on the grounds that it would confuse the public).
Intrigued by the Monroe question, I discovered a pair of federal court cases discussing the posthumous rights of Marilyn Monroe — Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc. and Shaw Family Archives Ltd. v. CMG Worldwide, Inc. — which held that because (a) Monroe died before California’s Celebrity Rights Act was passed in 1985, and (b) the state of New York does not recognize a right of publicity after the artist’s death, Monroe’s name, image, and voice are now in the public domain in the states of California and New York. By implication, they would also be in the public domain in any state that, at the time of Monroe’s death in 1962, did not recognize a right of publicity that survived the artist’s death.
In response to those rulings, California passed legislation that created descendible rights of publicity that last 70 years after death — retroactively — for any person who died after January 1, 1938. Armed with the newly-passed SB 771, in 2007 the heirs of Monroe’s estate moved for reconsideration in the Milton H. Greene case. While the court agreed that due to the passage of the bill, Monroe’s heirs had standing to assert Monroe’s posthumous right of publicity under California law, in a strange twist of fate — because of inconsistent positions previously taken by Monroe’s estate before the California taxing authorities (which had the effect of drastically reducing her estate tax) — the court ruled that the heirs were barred from claiming that Monroe lived in California at the time of her death. Which meant, in polite terms, Game over, heirs. Do not pass Go. Do not collect $200.
In short, the public now owns Marilyn, so Megan Fox is at liberty to flaunt her Marilyn tattoo to all and sundry, without fear of prosecution from the grave. And should you, yourself, desire to adorn your body with an image of America’s great Hollywood diva, you may do so as well. You may even wear her proudly on your forehead — though it’s unlikely to do much for your career.