Finally, We Can Enjoy 'Barbie Girl' With A Clear Conscience

It's parody, not trademark infringement, court asserts.

Saying that "the parties are advised to chill," a federal appeals court judge declined on Wednesday to reinstate Mattel's 1997 suit against MCA Records over Aqua's pop hit "Barbie Girl," which the toy company had claimed was both trademark infringement and defamation.

"If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong," wrote Ninth U.S. Circuit Court of Appeals judge Alex Kozinski, in his upholding of a lower court ruling that threw out Mattel's suit as well as MCA's countersuit for defamation (see [article id="1424988"]"Aqua Triumphant In 'Barbie Girl' Lawsuit, To Release Home Video In June"[/article]).

Mattel had originally claimed that "Barbie Girl" sullied their iconic doll's image with sexual innuendo. In the song, the female vocalist refers to herself as a "blonde bimbo girl" and sings, "I'm a Barbie girl, in my Barbie world/ Life in plastic, it's fantastic/ You can brush my hair, undress me everywhere." A male singer, whom she calls Ken, exhorts her during the bridge to "go party." The toymaker also said the song confused listeners into thinking the company backed it.

The ruling deemed the song a parody and protected under free speech.

"The problem arises when trademarks transcend their identifying purpose," Kozinski wrote for the three-judge panel. "Some trademarks enter our public discourse and become an integral part of our vocabulary. How else do you say that something's 'the Rolls Royce of its class'? What else is a quick fix, but a Band-Aid? Does the average consumer know to ask for aspirin as 'acetyl salicylic acid'? ... Once imbued with such expressive value, the trademark becomes a word in our language and assumes a role outside the bounds of trademark law."

Further, the judge ruled, the lyrics confirm that the use of the trademark is designed to convey a message about the song and not to identify the product's producer. "If we see a painting titled 'Campbell's Chicken Noodle Soup,' we're unlikely to believe that Campbell's has branched into the art business," Kozinski wrote. "Nor, upon hearing Janis Joplin croon 'Oh Lord, won't you buy me a Mercedes Benz?,' would we suspect that she and the carmaker had entered into a joint venture."

MCA had defended the song as "social commentary" and had stickered Aqua's album Aquarium with a disclaimer that noted the song was not "created or approved" by the maker of Barbie dolls.

"This decision reiterates the power of free speech," MCA President Jay Boberg said in a statement. "This ruling ... affirms our artists' rights to express themselves freely. For that reason, MCA was committed to defending this litigation to the furthest extent necessary to ensure our artists' freedoms."

A Mattel spokesperson was not available for comment.

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