Abstract

http://ssrn.com/abstract=2283204
 


 



Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie and Exceptions


Rebecca Tushnet


Georgetown University Law Center

2013

Intellectual Property At the Edge, (Rochelle Dreyfuss & Jane Ginsburg eds., 2013), Forthcoming
Georgetown Public Law Research Paper No. 13-059

Abstract:     
Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards such overlapping claims. In order to ensure that their combined scope is no greater than the sum of their parts, both trademark and copyright defenses ought to be considered together. The Barbie cases highlight the problem that overlaps between the two regimes can challenge the very idea of IP boundaries, unless robust defenses exist against overclaiming.

Number of Pages in PDF File: 18

Keywords: copyright, trademark, fair use

JEL Classification: K00, K30, K39

Accepted Paper Series





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Date posted: June 22, 2013  

Suggested Citation

Tushnet, Rebecca, Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie and Exceptions (2013). Intellectual Property At the Edge, (Rochelle Dreyfuss & Jane Ginsburg eds., 2013), Forthcoming; Georgetown Public Law Research Paper No. 13-059. Available at SSRN: http://ssrn.com/abstract=2283204

Contact Information

Rebecca Tushnet (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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