A commercial that played this Halloween promoting a new line of Barbie Fashionista dolls reminded me of an earlier blog post in which I wrote about some of the legal lessons learned from Barbie. One of those lessons involved the parody of Barbie in the song “Barbie Girl” by the group Aqua to which Mattel did not take kindly and sued. In 2002, the Ninth Circuit ruled against Mattel in an opinion written by Judge Kozinski and in the process, helped shape the contours of the First Amendment and the trademark fair use defense.
The commercial shows that it took seven years, but the parties have apparently heeded Judge Kozinski’s admonition that the: “parties are advised to chill.” In a “Now For Something Completely Different” moment, Mattel and Aqua have joined forces in a series of commercials to promote the Barbie line of dolls and Barbie’s first music video by using a reworked version of the “Barbie Girl” song:
I am not privy to the licensing deal, but in answer to a number of commentators and bloggers, Mattel is not using the song for free. Aqua and MCA Records were successful in their fair use defense because the song is a parody of Barbie. The reworked song is not. Nor could Mattel say that it was making fun of itself or of the song. Instead, Mattel acknowledges that is is using the song because the song has become the “epitome of Barbie” and is now “iconic.”
There may be those like Charlie Brown’s sister, Sally, who decry that Aqua has “sold out” (7:25 into the video clip) to Mattel, but even Sally can agree that Aqua is getting its “restitution” through this licensing deal even if she lost out on trick-or-treating this Halloween.