Thursday, January 3, 2013

Customizing Barbie Dolls

Dear Rich: If a custom doll is created using another one as a base, is it an infringement on the copyright to mention the doll used as a canvas even if you specify that it has been modified. For example, if I were to buy a Barbie, MonsterHigh or Blythe doll and then paint and sculpt her face to look the way I want and then decided to sell this doll on Etsy or exhibit her in an art gallery as a custom X Brand Name could I do that? In essence, I'd only be mentioning that she was an X to give people a general idea of her size and type since the doll would no longer look like the dolls you can buy, but are you allowed to say this? I know that people who customize cars and motorcycles don't seem to get into trouble for mentioning the brand of the vehicle they used, is this different? And if it is, why is it so? Also, even if you're allowed to mention the canvas doll's brand do you have to refrain from selling your custom doll in the box she came from since that item does have the maker's logo? It's possible that you're infringing copyright, (though it probably won't matter). Unlike classic automobiles, Barbie is protected under copyright laws and modifying the doll creates a derivative work, something that its owners, Mattel, may consider an infringement. In practical terms, it seems pretty unlikely Mattel will pursue you simply for modifying the doll (and you may have a reasonable fair use argument). There are many "altered" Barbies and Mattel seems to have a "live and let live" approach to these plastic ladies (our altered entry is shown, above). In any case, the company hasn't had good luck pursuing arty derivative makers and seems to have accepted the fact that folks like to parody their cash "cow" (nay offense, B!).
What about trademarks? The company is more likely to object to the sale of the modified doll within the original packaging. That raises a trademark issue --  consumers are more likely to be confused -- and it implies that Mattel is the source of the derivative. When selling it on Etsy, you can mention that it is a modified Barbie doll but if you're really concerned about liability, include a disclaimer that  the modified dolls are not endorsed by or associated with Mattel. That will make it more challenging for the company to claim consumers could be confused.

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